HomeMy WebLinkAboutITEM VIII-B-5CITY OF
AU~~RN
WASHINGTON
AGENDA BILL APPROVAL FORM
Agenda Subject: Auburn Avenue Theater Lease Agreement Date: March 1, 2007
Department: Attachments: Budget Impact:
Human Resources Resolution No. 4168 and A reement
Administrative Recommendation:.
City Council adopt Resolution No. 4168.
Background Summary:
The City of Auburn is engaged in a variety of parks and recreations programs, including presentations,
performances, and programs, etc., geared to benefit, entertain and educate the citizens of the City of
Auburn and the Auburn community. The City has a need to expand the venues and sites of such
performances and programs.
The Auburn Avenue Theater became available to the City through lease, which proved to be an
advantageous forum to enhance the available programs, and the City Council approved a fifteen(15) year
lease by Resolution No. 4063 in July 2006. It was then discovered that certain major structural
improvements were necessary in order for the City to utilize the facility as contemplated and, in order to
allow the City to receive a use commensurate with its structural repair costs, it is appropriate to extend the
term of the lease to a total of thirty (30) years rather than the initial fifteen (15) year term.
A0305-4
05.1.2, A3.17
Reviewed by Council & Committees: Reviewed by Departments ~ Divisions:
^ Arts Commission COUNCIL COMMIT-TEES: ^ Building ^ M&O
^ Airport ^ Finance ^ Cemetery ^ Mayor
^ Hearing Examiner ^ Municipal Serv. ^ Finance ^ Parks
^ Human Services ^ Planning & CD ^ Fire ^ Planning
^ Park Board ^Public Works ^ Legal ^ Police
^ Planning Comm. ^ Other ^Public Works ^ Human Resources
^ Information Services
Action:
Committee Approval: ^Yes ^No
Council Approval: ^Yes ^No Call for Public Hearing _!_/_
Referred to Until _!_/_
Tabled Until _1_!_
Councifinember: Backus Staff: Heineman
Meetin Date: March 5, 2007 Item Number: VI11.6.5
~~$~$.N ~ MORE THAN YOU IMAGINED
RESOLUTION N0.41 6 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, APPROVING THE LEASE
WITH JILLIAN ENTERPRISES, LLC, FOR A REVISED
LEASE OF THE AUBURN AVENUE THEATER
WHEREAS, the City of Auburn is engaged in a variety of parks and
recreations programs, including presentations, demonstrations, performances and
programs geared to benefit, entertain and educate the citizens of the City of Auburn
and the Auburn area community; and
WHEREAS, the City of Auburn has had a need to expand the venues and
sites of such presentations, programs, performances, etc; and
WHEREAS, the Auburn Avenue Theater became available to the City, through
lease, for such purposes and this could be an advantageous forum for the City to use
to enhance the programs available through its park and recreation program, as well
as a forum that other departments could utilize; and
WHEREAS, after the initial lease, approved by Resolution No. 4063, was
commenced, it was discovered that certain major structural improvements were
necessary in order for the City to utilize the facility as contemplated; and
WHEREAS, in order to allow the City to receive a use commensurate with its
structural repair costs, it is appropriate to extend the term of the lease to a total of
thirty (30) years, rather than the initially negotiated term of fifteen (15) years.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING
COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Resolution No. 4168
March 1, 2007
Page 1 of 2
Section 1. That the revised thirty year lease between the City of Auburn and
Jillian Enterprises, LLC, for use of the Auburn Avenue Theater, which lease is
substantial shall be in substantial conformity to the lease attached hereto, marked as
Exhibit "A" and incorporated herein by this reference, be and the same hereby is
approved, and the Mayor is authorized to execute the same after exercising the City's
right to inspect the premises to determine its status and suitability for City purposes.
Section 2. This Revised Lease replaces and substitutes for the Lease
approved by Resolution No. 4063.
Section 3. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
Section 4. This resolution shall be in full force and effect upon passage and
signatures hereon.
Dated and Signed this day of , 2006.
CITY OF AUBURN
PETER B. LEWIS
ATTEST: MAYOR
APP.
Resolution No. 4168
March 1, 2007
Page 2 of 2
Danielle E. Daskam, City Clerk
CITY OF AUBURN
AUBURN AVENUE THEATER LEASE (Revised)
THIS LEASE made and entered into this day of ,
2006, by and between Jillian Enterprises, LLC, a Washington limited liability company,
hereinafter the "LESSOR," and the City of Auburn, Washington, a municipal corporation of
the State of Washington herein referred to as the "LESSEE."
WITNESSETH:
WHEREAS, the LESSOR owns the Auburn Avenue Theater (hereinafter referred to
as the Premises), located at 10 Auburn Avenue, Auburn, Washington, described more
particularly as follows:
LOTS 5 6 AND 7 BLOCK 14 L W BALLARD'S 3rd ADDITION TO
SLAUGHTER ACCORDING TO THE PLAT THEREOF, RECORDED IN
VOLUME 8 OF PLATS, PAGE 47, RECORDS OF KING COUNTY,
WASHINGTON, EXCEPT PORTION OF SAID LOTS 6 AND 7
CONDEMNED IN KING COUNTY SUPERIOR COURT CAUSE
NUMBER 140546 FOR ~ STREET PURPOSES AS PROVIDED BY
ORDINANCE NUMBER 356 OF THE CITY OF AUBURN; and
WHEREAS, the Auburn Avenue Theater is a venue that could be used by the City of
Auburn for a variety of events, presentations and programs; and
WHEREAS, it would be beneficial to the City of Auburn and to the Auburn
community for the parties to enter into a lease whereby the Auburn Avenue Theater could be
made available for such uses.
NOW THEREFORE, in consideration of the mutual terms and conditions hereof, IT
IS HEREBY AGREED BY AND BETWEEN THE PARTIES as follows:
LEASE OF THEATER.
With this agreement the LESSOR hereby leases to the LESSEE the Auburn Avenue
Theater, located at 10 Auburn Avenue, Auburn, Washington 98002, for a period commencing
on the 1st day of January, 2007 ("Commencement Date"), and continuing for fi-f~eer~-thirty
(-1-30) years, terminating on the 31st day of December, ~-2036 ("Termination Date").
2. PURPOSE OF LEASE-CONDITION OF PREMISES.
(a) The purpose of this lease shall be to make the rental Premises available for use by
the City of Auburn Parks and Recreation Deparhnent, and by other departments of the City,
for various Artistic, Cultural,- Educational and Entertainment and Recreational programs and
presentations, and for special events, programs and presentations similarly beneficial to the
community.
(b) LESSEE acknowledges that it has had the right and opportunity to inspect the
Premises and that the Premises are suitable for LESSEE's purposes and accepts the Premises
in its condition existing as of the signing date of the Lease, subject to all applicable zoning,
Auburn Avenue Theater Lease Page 1
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municipal, county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any covenants or restrictions of record. LESSOR agrees to maintain
the Premises in substantially their current condition until LESSEE assumes occupancy. In
the event substantially all of the Premises are destroyed and are unavailable for LESSEE's
occupancy as of the Commencement Date, this Lease may be terminated upon notice by
either party.
RENTAL AMOUNT.
(a) The LESSEE shall pay to the LESSOR as and for the rental hereof the sum of
Five Thousand Five Hundred Dollars ($5,500.00) (the "Base Rent") per month during the
term of this Lease, payable on or before the 1st day of each month during the term hereof.
The Rental Amount shall be adjusted annually, effective January 1 of each year during the
term of the lease, in accordance with the previous U.S. CPI-W, June to June.
(b) Rental amount will include use of all personal property Furniture, Fixtures and
Equipment (collectively the "Personal Property") within the Leased premises, and shall also
entitle the LESSEE to the Mailing List of the Auburn Avenue Theater and Computer located
in the Auburn Avenue Theater premises, which LESSEE shall thereafter be entitled to use
during the term of the Lease. The LESSEE shall also be entitled to make renovations and
replace Furniture, Fixtures and Equipment within the Leased premises as LESSEE deems
appropriate, which replaces or renovates Furniture, Fixtures and Equipment. All Personal
Property which the LESSEE replaced shall, at the option of LESSEE, be retained by the
LESSEE at the conclusion of the Leasc.
4. MAINTENANCE, CLEANING, REPAIR AND UTILITIES.
(a) The LESSEE shall maintain the leased premises in good repair and tenable
condition, so that at the conclusion of the Lease, the premises shall be in a condition as
good or better than its condition at the commencement of the Lease. The LESSEE shall
make all repairs and replacements, whether structural or non-structural, necessary to keep the
Premises safe and in good condition, including all utilities and other systems serving the
Premises. In the event that the LESSEE f nds that an. y such repairs or replacements are
~~o~riate the LESSEE is authorized to determine the type, extent and nature of such.
repairs Or re~aCements.
(b) In addition to the rental payments described above, the LESSEE shall be
responsible for payment of all water and sewer utilities to the premises of this Lease, as
well as telecommunications, electrical and other utility service charges which are
furnished to the premises during the term of this Lease, which utility payments shall be
made on time and so as to avoid any adverse implications for the premises.
(c) The LESSEE shall be responsible to pay all real and personal property taxes
and other assessments, if any, which relate to the real and personal property herein leased
to LESSEE
ADMINISTRATION OF LEASE.
This Lease shall be administered by J. B. Douglas, or designee, on behalf of the
LESSOR, and by the Mayor of the City of Auburn, or designee, on behalf of the LESSEE.
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Any written notices required by the terms of this Lease shall be served on or mailed to the
following addresses:
City of Auburn
Auburn City Hall
25 West Main
Auburn, WA 98001
Phone (253) 931-3000
Facsimile (253) 804-3116
Jillian Enterprises, LLC
Attn: J.B. Douglas
PO Box 99928
Lakewood, WA 98499
Phone (253) 261-1339
Facsimile (253) 548-4497
6. NOTICES.
All notices or communications permitted or required to be given under this Lease
shall be in writing and shall be deemed to have been duly given if delivered in person or
deposited in the United States mail, postage prepaid, for mailing by certified mail, return
receipt requested, and addressed, if to a party of this Lease, to the address set forth next to
such party's signature at the end of this Lease, or if to a person not a party to this Lease, to
the address designated by a party to this Lease in the foregoing manner. Either party may
change his or its address by giving notice in writing, stating his or its new address, to any
other party, all pursuant to the procedure set forth in this section of the Lease.
7. SUBLET.
The LESSEE shall be entitled to sublet assign this Lease or any part thereof for any
uses deemed by the LESSEE to be within the purpose of this Lease without the prior written
consent of LESSOR.
8. RIGHT OF FIRST REFUSAL.
The LESSEE is hereby granted a Right of First Refusal to purchase the Premises
of this Lease for the amount (less the amount of LESSEE'S capital improvements) and
under like circumstances of any acceptable bona fide offer to purchase said premises
which LESSOR is willing to accept, which bona fide offer shall be communicated to the
LESSEE by the LESSOR (the "Offer Notice"), and which shall be exercisable by the
LESSEE for a period of thirty (30) days from the date of the LESSEE'S receipt of the
Offer Notice.
9. SURRENDER OF PREMISES.
In the event of default in any of the requirements of this Lease, or at the expiration of
the term of this Lease, the LESSEE will quit and surrender the premises to LESSOR.
10. TERMINATION.
Unless sooner terminated upon the mutual agreement of the parties, this Lease The
Lease shall terminate on the date specified in Section 1
11. INSURANCE.
Auburn Avenue Theater Lease Page 3
(02.28.07)
(a) The LESSEE shall procure and maintain for the duration of the Lease, insurance
against claims for injuries to persons or damage to property which may arise from or in
connection with LESSEE'S operation and use of the Leased Premises. As of the date that
LESSEE executes this Lease, LESSEE represents and warrants to LESSOR that (a) Tenant is
a member of the Washington Cities Insurance Authority (WCIA), which is aself-insured
pool of 110 municipal corporations in the State of Washington, and (b) WCIA has at least
$2,000,000 per occurrence of liability coverage in its self insured layer that is applicable in
the event an incident occurs that is deemed attributed to the negligence of a member.
Property insurance shall be written covering the full value of LESSEE'S property, contents
and improvements with no coinsurance provisions. The LESSEE shall be responsible for
maintaining, during the term of this Lease and at its sole cost and expense, the types of
insurance coverages and in the amounts determined by its Risk Manager as necessary to
adequately protect the Lease premises and the liabilities connected with this Lease, and such
other insurance as may be required by law. Such coverage shall include full replacement cost
for the building and other personal property subject to the Lease, including coverage for
earthquakes, to the extent consistent with the LESSEE'S Insurance Coverage through WCIA.
If permitted by such WCIA policy, LESSOR shall be named as an Additional Insured of such
coverage.
(b) LESSEE and LESSOR hereby release each other and any other tenant, their
agents or employees, from responsibility for, and waive their entire claim of recovery for any
loss or damage arising from -any cause covered by property insurance required to be carried
by each of them. Each party shall provide notice to the insurance carrier or carriers of this
mutual waiver of subrogation, and shall cause its respective insurance carriers to waive all
rights of subrogation against the other. This waiver shall apply only to the extent that such
claim, loss, or liability is covered by insurance.
12. INDEMNIFICATION.
The LESSEE shall indemnify and hold harmless the LESSOR and its officers, agents
and employees, or any of them from any and all claims, actions, suits, liability, loss, costs,
expenses, and damages of any nature whatsoever, by any reason of or arising out of the
negligent act or omission of the LESSEE, its officers, agents, employees, or any of them
relating to or arising out of the performance of this Agreement, except for damages caused by
the sole negligence of the LESSOR.
13. DESTRUCTION OF PREMISES.
(a) Partial Destruction. If the Premises are rendered partially untenantable by fire or
other insured casualty as determined by the LESSEE'S Building Official and Risk Manager,
in consultation with the LESSOR, and if the damage is repairable within sixty (60) days from
the date of the occurrence, (with the repair work and preparations therefore to be done during
regular working hours on regular work days), which repair time-frame shall be as determined
by the LESSEE'S Building Official and Risk Manager, in consultation with the LESSOR,
LESSEE shall repair the premises with due diligence and this Lease shall continue in full
force, including the payment of rent.
(b) Total Destruction. If the Premises are completely destroyed by fire or other
casualty, or if they are damaged by uninsured casualty, or by insured casualty to such an
extent that the damage cannot be repaired within sixty (60) days of the occurrence, LESSEE
Auburn Avenue Theater Lease Page 4
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shall have the option to restore the Premises or terminate this Lease and cause the insurance
proceeds to be paid to LESSOR. If this Section becomes applicable, LESSEE shall advise
LESSOR within thirty (30) days after LESSEE learns of such casualty whether LESSEE
elects to restore the Premises and, if so, shall commence and prosecute-the restoration work
with diligence, and this Lease shall continue in full force, including the payment of rent..
(c) Limitation. LESSOR shall not be responsible to the LESSEE for damage to, or
destruction of, LESSEE'S personal property and removable trade fixtures including, without
limitation, LESSEE'S furniture, appliances, furnishings, and equipment in, on, or about the
Premises regardless of the cause of damage or destruction.
14. DEFAULT.
The following occurrences shall each be deemed an Event of Default by LESSEE:
(a) Failure To Pav. 'LESSEE fails to pay any sum, including Rent, due under this
Lease following ten (10) days written notice from LESSOR of the failure to pay;
(b) Other Non-Monetary Defaults. LESSEE breaches any agreement, term or
covenant of this Lease other than one requiring the payment of money and not otherwise
enumerated in this Section, and the breach continues for a period of thirty (30) days after
notice by LESSOR to LESSEE of the breach.
15. REMEDIES.
All rights and remedies of LESSOR under this Lease shall be cumulative and none
shall exclude any other rights or remedies allowed by law or in equity, and this Lease is
declared to be a Washington contract, and all the terms hereof shall be construed according to
the laws of the State of Washington and venue for any action brought hereunder shall lie in
King County, Washington.
16. COSTS AND ATTORNEY'S FEES.
If, by reason of any default or breach on the part of either party in the performance of
any of the provisions of this Lease, a legal action is instituted, the losing party agrees to pay
all reasonable costs and attorney's fees in connection therewith.
17. CHANGES AND MODIFICATIONS.
This document constitutes the entire agreement between the parties, any changes or
modifications to this document must be by mutual consent and in writing.
18 SUBORDINATION
LESSEE agrees that this Lease shall be subordinate to any mortgages or deeds of
trust, placed upon the property legally described above, provided, that in the event of
foreclosure, if LESSEE is not in default and agrees to attorn to the mortgagee or beneficiary
under deed of trust, such mortgagee or beneficiary shall recognize LESSEE'S right of
possession for the term of this Lease
19. ACCESS.
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Upon reasonable notice at agreed upon times during business hours, and with no
notice in case of emergency, LESSOR and its agents shall have the right to enter the
Premises to inspect the same, and to show them to prospective purchasers or lenders. For a
period of 180 days prior to the expiration of this Lease, the LESSEE will additionally allow
the premises to be shown to persons wishing to lease, and during said period LESSOR will
be permitted to post notices of "For Rent" and "For Sale" to be maintained without
molestation upon the Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective the day and year first set forth above.
LESSEE:
CITY OF AUBURN
Peter B. Lewis, Mayor
LESSOR:
JILLIAN ENTERPRISES, LLC
J. B. Douglas, Manager
Attest:
Auburn Avenue Theater Lease Page 6
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Danielle Daskam, City Clerk
LES~QR NQTARY
STATE C?F WASHINGTQN ~
SS.
eovNTY aF DING )
This is to certify that on this day of 2Q06, before me the. undersigned, a
Notary Public in and far the State of Washington, duly signed, commissioned and qualified,
personally appeared J.R. Douglas, to me known to be the Manager of Jillian Enterprises, LLG,
a Washington limited liability company, who executed the foregoing instrument, and
acknowledged it to he the free and voluntary act. of said entity, far the uses and purposes mentioned
in this instrument, and an oath stated that he was authorized. to execute said instrument.
IN WITNESS WI-IEREOF, I have hereunto set my hand and affixed my official seal, the day and
year first above written,
Notary Public in and far the State of Washington
residing at:
My commission expires:
LESSEE NQTARY
STATE QF WASHINGTQN )
} SS.
Cf~LINTY CAF RING }
This is to certify that an this .day of 2QgG, before me the undersigned, a
Notary Public in and far the State of Washington, duly signed, commissioned and qualified,
personally appeared Peter R. Lewis, to me known. to be the Mayor of the Gity of Aahurn, a
Washington municipal corporation, who executed the foregoing instrument, and acknowledged. it
to be the free and voluntary act of said partnership, for the uses and purposes mentioned in this
instrument, and an oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREQF, I have hereunto set my hand and affixed my official seal, the day and
year first alcove written,
Notary Fublic in and for the State of Washington
residing at:
My commission. expires:
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