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HomeMy WebLinkAbout4063 RESOLUTION NO.4 0 6 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING THE LEASE WITH JILLlAN ENTERPRISES, LLC, FOR 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 is available to the City, through lease, for such purposes and it would be advantageous for the City to take advantage of this opportunity to enhance the programs available through its park and recreation program and other departments that would utilize such a forum. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the 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, Resolution No. 4063 July 12, 2006 Page 1 of 2 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. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this /I~ ~ J J /. day of ..... .-at CITY~ PETER B. LEWIS MAYOR ,2006. ~ ~ ~ ATTEST: ;Qa,~ ~ Damelle E. Daskam, City Clerk Resolution No. 4063 July 12, 2006 Page 2 of 2 CITY OF AUBURN AUBURN A VENUE THEATER LEASE . o.J1;- THIS LEASE made and entered into this I tJ day of 2006, by and between Jillian Enterprises, LLC, a Washington lim' d liab lity company, hereinafter the "LESSOR," and the City of Auburn, Washington, a nicipal corporation of the State of Washington herein referred to as the "LESSEE." WITNESSETH: WHEREAS, the LESSOR owns the Auburn A venue Theater (hereinafter referred to as the Premises), located at 10 Auburn A venue, 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 A venue 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: 1. 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 fifteen (15) years, terminating on the 31st day of December, 2021 ("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 Department, 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 (07.18.06) Page 1 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. 3. 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 1 st 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 A venue Theater and Computer located in the Auburn A venue 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 Lease. 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. (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 5. 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. Any written notices required by the terms of this Lease shall be served on or mailed to the following addresses: Auburn A venue Theater Lease (07.18.06) Page 2 City of Auburn Auburn City Hall 25 West Main Auburn, W A 98001 Pho~e ~253) 93 \-3000 FacsImIle (fS$) 8df- 511 ,b 6. NOTICES. Jillian Enterprises, LLC Attn: lB. Douglas PO Box 99928 Lakewood, W A 98499 Phone (253) 261-1339 Facsimile (253) 584-4497 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 during 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 II. INSURANCE. (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 Auburn Avenue Theater Lease (07.18.06) Page 3 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 a self-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 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 Auburn A venue Theater Lease (07.18.06) Page 4 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 Pay. 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 ofthis Lease 19. ACCESS. 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 Auburn A venue Theater Lease (07.18.06) Page 5 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: LESSOR: JILLIAN ENTERPRISES, LLC ----- Q~2 L ../ ~%/' ;tjr 4?B. Douglas, Man r ]~~ Danielle Daskam, City Clerk Auburn A venue Theater Lease (07.18.06) Page 6 LESSOR NOTARY STATE OF WASHINGTON ) ) SS. COUNTY OF KING ) This is to certify that on this I b day of 2006, before me the undersigned, a Notary Public in and for the State of Was ly signed, commissioned and qualified, personally appeared J.B. Douglas, to me kn n to be e Manager of Jillian Enterprises, LLC, a Washington limited liability company, who executed the foregoing instrument, and acknowledged it to be the free and voluntary act of said entity, for the uses and purposes mentioned in this instrument, and on oath stated that he was authorized to execute said instrument. .........- , Notary Public . residing at: My commission expires: IN WITNESS WHEREOF, I have hereunto set my han year first above written. . '- , '- ....~ - -. ~ .- '-' .~ -- - LESSEE NOTARY STATE OF WASHINGTON ) ) SS. COUNTY OF KING ) This is to certify that on this I B day of 2006, before me the undersigned, a Notary Public in and for the State of Was ly signed, commissioned and qualified, personally appeared Peter B. Lewis, to me own be the Mayor of the City of Auburn, a Washington municipal corporation, who executed e 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 on oath stated that he was authorized to execute said instrument. the day and IN WITNESS WHEREOF, I have hereunto set my han year first above written. ',,- . - ..... .-'- - ,- -- -/- . -- - -- .-" - ..;" .,- " ;;: Auburn A venue Theater Lease (07.18.06) Page 7