ORDINANCE _________________

AN ORDINANCE relating to the Seattle Center Department authorizing the execution of a revocable, non-exclusive license agreement with Teatro ZinZanni to construct certain improvements on City property for the purpose of public ingress and egress to the circus dinner theater on an adjacent property.

WHEREAS, the City owns certain real property generally situated at Mercer Street between 2nd Ave. N. and 3rd Ave. N. in Seattle, King County, Washington, referred to herein as "the City Property" and legally described in the Quitclaim Deed (the "Deed") attached as Exhibit A to Attachment 1 hereto; and

WHEREAS, the grantor of the City Property reserved an easement for ingress and egress to adjacent property currently leased by Teatro Zinzanni, and the granting deed restricts the grantor or its successors or assigns from altering the City Property pursuant to any exercise of right based upon the easement unless by agreement between the City and the grantor or grantor's successor; and

WHEREAS, Teatro Zinzanni is constructing certain improvements on its leasehold property for the purpose of operating a dinner theater, and in conjunction with the improvements on its leasehold property, Teatro Zinzanni wishes to obtain the City's permission to make certain improvements and use the City Property on a non-exclusive basis for the purpose of public access from Mercer Street to Teatro Zinzanni's theater; and

WHEREAS, the grantor of the City Property placed certain conditions in the Deed, including the condition that the administrative control and management of the City Property be vested in the Seattle Center Department and used for the purpose of open space improvements to enhance the Seattle Center Theater District along Mercer Street and for development consistent with the Seattle Center 2000 Master Plan, as amended from time to time; and

WHEREAS, the Director or the Seattle Center has determined that the improvements proposed by Teatro Zinzanni will include improvements to the landscaping and open space at Teatro Zinzanni's cost, and has further determined that the proposed improvements and use will enhance the Seattle Center Theater District fronting Mercer Street; and

WHEREAS, the Director has concluded that it will benefit the Seattle Center and the City to permit Teatro Zinzanni to construct certain improvements on the City Property in order to ensure Teatro Zinzanni will front the entrance to its theater on Mercer Street, which benefits are likely to include additional parking revenue to the City;

NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Seattle Center Director is hereby authorized to execute a non-exclusive revocable license agreement with Teatro Zinzanni substantially in the form attached hereto and identified as "REVOCABLE LICENSE AGREEMENT between THE CITY OF SEATTLE and TEATRO ZINZANNI" (Attachment 1).

Section 2. The Seattle Center Director is hereby authorized to manage and administer the license agreement and to make such modifications to the Agreement as the Director deems in the City's best interest.

Section 3. Any act consistent with the terms and conditions of the license agreement attached hereto taken prior to or after the passage of this ordinance is hereby ratified and confirmed.

Section 4. 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 _________, 20__, and signed by me in open session in authentication of its passage this _____ day of __________, 20__.

_________________________________

President _________of the City Council

Approved by me this ____ day of _________, 20__.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 20__.

____________________________________

City Clerk

(Seal)

Attachment 1 -REVOCABLE LICENSE AGREEMENT between THE CITY OF SEATTLE and TEATRO ZINZANNI

Rebecca Keith/RCK

CEN Teatro 2007 ORD

November 8, 2007

(Ver. 1 )

Attachment 1

Attachment 1 to Teatro 2007 Ordinance

REVOCABLE LICENSE AGREEMENT

between

THE CITY OF SEATTLE

and

TEATRO ZINZANNI

This revocable license agreement ("License") is entered into by the CITY OF SEATTLE (the "City" or "Licensor"), a first class municipal corporation of the State of Washington, and TEATRO ZINZANNI (also referred to as "Licensee"), a Washington non-profit corporation.

I. RECITALS

1. The City owns certain real property generally situated at Mercer Street between 2nd Ave. N. and 3rd Ave. N. in Seattle, King County, Washington, referred to herein as "the City Property" and legally described in the Quitclaim Deed (the "Deed") attached as Exhibit 1 to this License.

2. The original grantor of the City Property reserved an easement for ingress and egress to adjacent property currently leased by Teatro Zinzanni (the "Leasehold"). The Deed restricts the grantor or its successors or assigns from altering the City Property pursuant to any exercise of right based upon the easement unless by agreement between the City and the grantor or grantor's successor.

3. The City Property is currently partially landscaped and mainly serves the purpose of open green space enhancement to the surrounding area and the Seattle Center.

4. Teatro Zinzanni is constructing certain improvements on its Leasehold property for the purpose of operating a dinner theater, and in conjunction with the improvements on its Leasehold property, Teatro Zinzanni wishes to obtain the City's permission to use the City Property on a non-exclusive basis for the purpose of public access from Mercer Street to Teatro Zinzanni's theater.

5. The City wishes to permit Teatro Zinzanni to construct certain improvements on the City Property in order to ensure that Teatro Zinzanni will front the entrance to its theater on Mercer Street, and the City wishes to permit Teatro Zinzanni and its patrons to use the City Property for access to the Theater on a non-exclusive basis.

Therefore, in consideration of mutual benefits and promises herein, the City and Teatro Zinzanni agree as follows:

II. TERM OF LICENSE

Subject to Section XI, this License will be effective as of the date when signed by both parties after Seattle City Council approval by ordinance, and will remain in effect until January 31, 2012, or until Licensee's leasehold interest in the Adjacent Property is terminated, whichever comes first.

III. PERMITTED USES AND AREAS

The City gives Licensee a revocable, non-exclusive license to construct certain improvements, modify and use portions of the City Property for the purpose of public ingress and egress to Licensee's theater and for no other purpose. The Director of the Seattle Center ('the Director") may impose reasonable rules or regulations on the use of the City Property with respect to hours of access and other similar matters. The use areas, permitted improvements and modifications are further described below:

1. Existing Brick Pathway. As shown on Exhibit 2 to this Agreement, there is an existing brick pathway (the "Easement Path") on the City Property which is used for ingress and egress pursuant to a reserved easement. The City gives Licensee permission to modify the path, but only to the extent necessary for the path to connect with an Americans with Disabilities Act compliant walkway and entrance to the Licensee's theater located on the Leasehold property. In granting this permission, it is the City's intention that the modifications to the path be on a temporary basis for the benefit of Licensee's business operation of a theater, not for the benefit of the Leasehold property. As a result, both parties agree that this License shall not be used by Licensee or any other third party to attempt to expand the scope or area of the easement reserved in the Deed.

2. Connecting Walkway. As shown on Exhibit 2 to this Agreement, the Easement Path will connect to a walkway leading to an ADA entrance to Licensee's theater ("Connecting Walkway"). The Connecting Walkway will primarily be located on the Leasehold Property, but if necessary to meet ADA requirements, the City gives permission for the Connecting Walkway to encroach onto the City Property no more than 24" along the length of the Connecting Walkway.

3. Stairway. The City gives Licensee permission to install one additional walkway and stairway across the City Property for the purpose of providing access to Licensee's main entrance on the Leasehold Property, as shown on Exhibit 2 and marked as "the Stairway." Prior to commencing construction or installation of the Stairway, Licensee shall submit construction drawings to the Director for approval.

IV. PROHIBITED ACTIVITIES

1. Licensee may not construct or install fixtures or improvements or otherwise modify the City Property except as expressly allowed in this License.

2. Licensee may not exclude or attempt to exclude third parties from appropriate, lawful and reasonable use of the City Property or the areas covered by this License.

V. LICENSE FEES AND COSTS

1. At its own cost and expense, Licensee has obtained plans for improving the landscaping on the City Property, which plans are attached as Exhibit 3 hereto. The City has determined that the landscaping improvements are of value to the City and will enhance the City Property and its use as an open space enhancement of the Seattle Center Theatre District. Licensee's conveyance of the plans to the City and payment for the installation of the landscaping as provided for in this section shall be the License Fee for Licensee's use hereunder.

2. The City will install, complete and maintain the landscaping improvements according to the plans, which may be revised by mutual agreement of the Parties. Once the work on the landscaping Improvements has commenced, the City shall complete all work in a reasonable time. Licensee shall pay the City for all costs incurred by City for the installation and completion of the landscaping improvements, and the City will not be responsible for any costs associated with the landscaping installation and maintenance for the effective term of this License. On a quarterly basis, City will bill Licensee at standard rates, including hourly rates for labor, materials, and any applicable taxes. All standard rates for labor are subject to cost of living increases.

3. Licensee is responsible for payment of all costs associated with its use as permitted hereunder, including but not limited to any applicable taxes, and shall hold the City free and harmless from any costs arising as a result of Licensee's use of the City Property.

VI. CONSTRUCTION REQUIREMENTS

The following terms and conditions apply to the modification of the Easement Path and the construction of the Connecting Walkway and Stairway (collectively referred to as the "Improvements").

1. Prior to commencing work on any of the Improvements, Licensee will submit detailed construction plans to the Director, and will obtain Director's written approval of the plans before the work begins. Once the work on the Improvements has commenced, the Licensee shall complete all work in a reasonable time.

2. Licensee shall complete all Improvements at its own cost and expense, and the City will not be responsible for any expenses associated with the Improvements.

3. Licensee shall keep the City Property free of any liens.

4. All work shall be completed according to first class workmanship standards.

5. Licensee shall only use contractors licensed to work in the state of Washington.

6. Licensee shall obtain all necessary construction permits and shall perform all work in compliance with applicable law and regulations, whether federal, state, or local.

7. Licensee shall require its contractors to comply with the insurance requirements in Section IX.

8. The Director of the Seattle Center may impose reasonable rules and guidelines for construction on the City Property and Licensee shall abide by the same.

VII. MAINTENANCE

Licensee is responsible for keeping the Easement Path, the Connecting Walkway and the Stairway in good condition and repair. The City will have no maintenance responsibilities with respect to the Easement Path, the Walkway and the Stairway. Additionally, Licensee shall be responsible for any damage to the City Property beyond normal wear and tear that is caused by the ingress and egress of Licensee's theater patrons.

After each of its theater events for which Licensee's patrons use the City Property for access to the theater, Licensee shall remove trash and refuse from the Easement Path, the Connecting Walkway, the Stairway, and adjacent areas.

VIII. INDEMNIFICATION

Licensee shall indemnify, defend, and hold the City harmless from and against any and all claims, demands, judgments, losses and expenses (including reasonable attorney's fees and costs) suffered by any person or entity arising from any act or omission of Licensee or any of its employees or agents related to Licensee's construction and maintenance of Improvements and walkways and the public's use of the same or arising from any use of the City Property by Licensee or it employees, agents, and invitees; provided that in compliance with RCW 4.24.115 as in effect on the date of this License, all provisions of this contract pursuant to which Licensee agrees to indemnify the City against liability for damages arising out of bodily injury to persons or damage to property relative to the construction, alteration, repair, addition to, subtraction from, improvement to the City Property, (i) shall not apply to damages caused by or resulting from the sole negligence of the City, its agents or employees, and (ii) to the extent caused by or resulting from the concurrent negligence of the City or the City's agents or employees and Licensee's agents or employees, the indemnification obligation shall apply only to the extent of Licensee's negligence. The Licensee waives any immunity under industrial insurance RCW Title 51 that it may have, but only with respect to the City and to the extent necessary to fulfill Licensee's indemnification duties hereunder. This indemnification obligation shall survive termination of this Agreement.

BY SIGNING BELOW, THE PARTIES ACKNOWLEDGE THAT THE FOREGOING PROVISION WAS MUTUALLY NEGOTIATED.

IX. INSURANCE

Before beginning any alterations and prior to any use of the City Property use areas and thereafter throughout the term of this License, Licensee shall obtain and maintain, at its own cost and expense, insurance as described in Exhibit 4, and shall otherwise fully comply with requirements of Exhibit 4. The City reserves the right to adjust or otherwise modify the insurance requirements in Exhibit 4 during the Term of this Agreement and with reasonable notice to Licensee.

Additionally, prior to beginning any construction or work on the City Property, Licensee shall ensure that its contractors comply with the insurance requirements as described in Exhibit 4.

X. HOLD HARMLESS AND WAIVER OF SUBROGATION

1. Licensee agrees to hold the City, its officers, agents and employees harmless from any damage or destruction to Licensee's Improvements on City Property and any damage or destruction to Licensee's adjacent Leasehold property occurring as a result of the use of City Property by Licensee, its agents, employees, invitees or the general public.

2. To the extent a loss is covered by insurance, the Licensee and the City hereby mutually release each other from liability and waive all right of recovery against each other from any loss from perils insured against under their respective insurance policies, including any extended coverage endorsements thereto; provided, that this release and waiver shall be inapplicable if it would have the effect of invalidating any insurance coverage of the City or the Licensee, and provided further that the City reserves the right to recover its deductible from Licensee in the event that Licensee's negligence causes the loss or damage.

XI. TERMINATION

1. This License is permissive in nature, and as such the City reserves the right to terminate this License. This License shall terminate automatically in the event that any legal proceeding is initiated based upon the assertion that this License violates the conditions of the Deed or any other provision of law. Additionally, this License may terminate upon the violation of any term of this License by Licensee, including, but not limited to, exceeding the scope of use or area of occupation, or failure to submit any sum of money when due.

2. Upon termination of this License, Licensee shall surrender the property to the City without need for further action. In the discretion of the Director of the Seattle Center, Licensee may be required to remove the Improvements and restore the City Property to its original condition at Licensee's cost and expense. Alternatively, the Director may require the Improvements to be left in place, in which case the Improvements shall be deemed donated to the City by Licensee.

XII. TIME AND MANNER FOR PAYMENT OF FEES

Licensee shall pay the City all sums due in lawful U. S. money within thirty (30) days of receipt of an invoice from the City. Payment shall be made to the account and address specified by the City in the invoice.

XIII. NOTICE

Any notice required herein shall be made in writing and shall be delivered in person or via first class mail to the attention of the person and at the address below:

For City: For Licensee:

Director Chief Operating Officer

Attention: Margaret Wetter Teatro ZinZanni

Seattle Center P.O. Box 9750

305 Harrison Street Seattle, WA 98109

Seattle, WA 98109

Or, to other such designee(s) as either party may, from time to time, designate in writing.

XIV. LATE FEES

Licensee shall pay City 12% interest per month on any outstanding balance for which Licensee has been invoiced and, for each monthly invoice that is prepared for such delinquency, such invoicing fee as is established by ordinance to cover the City's additional accounting and administrative costs therefore.

XV. AUDIT

Licensee shall maintain accurate accounting books and records and shall permit the State Auditor or the City, from time to time during regular City working hours, as the State Auditor, Director or City Auditor deems necessary, to inspect and audit in King County, Washington, all books and records of Licensee pertaining to the activities permitted hereunder. Licensee shall supply the State Auditor or City with, or shall permit the State Auditor or the City to make, copies of any such books and records and any portion thereof, upon the State Auditor's or the City's request.

XVI. MISCELLANEOUS

1. Compliance with Law. Licensee shall comply with all laws of the United States and the State of Washington; the Charter and Municipal Code of the City of Seattle; and rules, regulations, orders and directives of their administrative agencies and the officers thereof, as such enactments now exist or are hereafter enacted or promulgated and are applicable to Licensee's use of the City Property. Licensee shall comply with equal employment opportunity and nondiscrimination laws of the United States, the State of Washington, and the City of Seattle, including but not limited to Chapters 14.04, 14.10, and 20.42 of the Seattle Municipal Code (SMC), as they may be amended, and rules, regulations, orders, and directives of the associated administrative agencies and their officers. Licensee shall comply with all requirements of the Americans With Disabilities Act applicable to Licensee's use or occupancy of the City Property areas covered in this License, as now or hereafter amended, and all rules and regulations implementing the same.

2. Governing Law, Venue. This License shall be construed under the laws of the State of Washington. Venue for any litigation arising from this License shall be in King County Superior Court.

3. Non-Transferable without City Approval. The City's willingness to grant this License is in part conditioned upon the reputation of Licensee, and the benefits to the Seattle Center Mercer Street corridor resulting from the Licensee's unique business operations. As a result, this License is not assignable or transferable without the City's express approval in writing and the grant or denial of such approval shall be in the sole discretion of the Director of the Seattle Center.

4. No Partnership or Joint Venture. The City does not by this License, in any way or for any purpose, become a partner or participant in a joint venture with Licensee in the conduct of its business or otherwise.

5. No Waivers. No action other than a written document from the Director specifically so stating shall constitute a waiver by the City of any particular breach or default by Licensee, nor shall such a document waive any failure by Licensee to fully comply with any other term or condition of this Agreement, irrespective of any knowledge any City officer or employee may have of such breach, default, or noncompliance. The City's failure to insist upon full performance of any provision of this License shall not be deemed to constitute consent to or acceptance of such incomplete performance in the future.

6. Force Majeure. Whenever a party's performance under this Agreement is prevented by an act of nature; war-like operations; civil commotion; riot; labor dispute including a strike or walkout, but not a lockout; sabotage; Federal or State regulation or control; or other unforeseeable conditions beyond reasonable control of such party, performance of such affected obligation shall be suspended for the duration of such condition but shall not be excused except by agreement of the parties.

7. Execution in Counterparts. This License may be executed in counterparts.

XVII. INCORPORATION OF EXHIBITS

The following exhibits are incorporated and made a part of this License:

Exhibit 1 Quitclaim Deed from Grantor Kreielsheimer Foundation to

the City of Seattle, Recording No. 2000 121 9000321

Exhibit 2 Site Plan showing Licensed Use Areas

Exhibit 2

Exhibit 3 Landscaping Plans

Exhibit 3

Exhibit 3(b)

Exhibit3(c)

Exhibit 4 Insurance Requirements

IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have executed this Agreement.

TEATRO ZINZANNI

By:_______________________________

Print Name:________________________

Its:_______________________________

Date:_____________________________ SEATTLE CENTER as representative of the City of Seattle

By:_______________________________

Print Name:________________________

Its:_______________________________

Date:_____________________________

Exhibit 4 to Att. 1 to Teatro 2007 Ordinance

LICENSEE: SEND THIS FORM TO YOUR INSURANCE BROKER

INSURANCE COVERAGES AND LIMITS

Licensee shall cause to be maintained continuously throughout the term of this Agreement, at no expense to the City, minimum coverages and limits of insurance as described below and to submit satisfactory evidence of such insurance not less than ten (10) days prior to the event:

1. COMMERCIAL GENERAL LIABILITY (CGL) insurance including:

Premises/Operations

Contractual

Host Liquor (if alcoholic beverages are served)

Personal/Advertising Injury

Stop Gap/Employers Liability (if applicable)

Such insurance must provide a minimum limit of liability of $1,000,000 each Occurrence Combined Single Limit Bodily Injury and Property Damage (CSL) except:

$1,000,000 each Offense Personal and Advertising Injury

$1,000,000 each Accident/Disease Stop Gap/Employers Liability (if applicable)

2. AUTOMOBILE LIABILITY insurance for owned, non-owned, leased or hired vehicles (as applicable) with a minimum limit of liability of $1,000,000 CSL.

3. WORKER'S COMPENSATION insurance as respects the state of Washington securing liability for industrial injury to employees if required by Title 51 of the Revised Code of Washington (RCW).

4. PYROTECHNIC LIABILITY insurance with a minimum limit of liability of $2,000,000 each Occurrence if pyrotechnics are used for an Event as required by the permit required from the Seattle Fire Marshall.

TERMS AND CONDITIONS

1. The insurance policy or policies, endorsements thereto, and subsequent renewals be subject to approval by the City as to company, form and coverage. The insurer shall be:

a. Licensed to do business in the State of Washington and Rated AVII or higher in the A.M. Best's Key Rating Guide, or

b. Procured under chapter 48.15 RCW by a Washington State licensed surplus line broker.

2. Such insurance as is provided under items 1, 2, 4 and 5 above shall include "The City of Seattle" as an additional insured for primary and noncontributory limits of liability subject to a separation of insureds clause. The limits of liability are minimum limits of liability only and shall not limit the liability of Licensee or any of its insurers; the City shall be an additional insured for all available limits of liability available to Licensee, whether primary, excess, contingent or otherwise.

3. Coverage shall not be cancelled without at least thirty (30) days prior written notice to the City, except ten (10) days notice with respect to cancellation for nonpayment of premium.

4. Self-insured Workers Compensation or sel-insured retentions in excess of $25,000 shall be disclosed in writing and are subject to the approval of the City's Risk Management Division. Approved selfinsurance may be partially or wholly substituted for required commercial liability insurance coverages.

5. Failure of Licensee to fully comply with these insurance requirements shall constitute a material breach of this Agreement.

EVIDENCE OF INSURANCE

1. Licensee's insurance broker shall issue a certificate of insurance that meets the minimum coverages and limits requirements herein and Licensee or its authorized representative shall issue self-insurance certification.

2. CERTIFICATION SHALL HAVE ATTACHED A COPY OF AN ADDITIONAL INSURED ENDORSEMENT OR BLANKET ADDITIONAL INSURED POLICY WORDING THAT DOCUMENTS THAT "THE CITY OF SEATTLE" IS AN ADDITIONAL INSURED FOR PRIMARY AND NON-CONTRIBUTORY LIMITS OF LIABILITY UNDER CGL INSURANCE.

3. If the CGL insurance is partly or wholly self-insured, Licensee shall state in writing that it will protect the City as an additional insured under the self-insured retention as if a commercial CGL insurance policy were in force.

4. Insurance and/or self-insurance certification shall be delivered to both of the following:

ORIGINAL TO: COPY TO:

Seattle Center Event Sales The City of Seattle

305 Harrison Street Risk Management Division Seattle, WA 98109 Fax: (206) 470-1270

Fax: (206) 684-7366 Email: riskmanagement@seattle.gov

Email: SCBooking@seattle.gov

NOTE TO INSURANCE BROKER:

1. ATTACH THIS INSURANCE ADDENDUM TO THE EVIDENCE OF INSURANCE.

2. IF ANY QUESTIONS OR ISSUES, CONTACT CITY RISK MANAGEMENT AT (206) 386-0071