HomeMy WebLinkAboutYeriel CITY OF AUBURN - YERIEL
SIGN USE AGREEMENT
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THIS AGREEMENT is made and entered into on the 21 day of
2012, by and between the CITY OF AUBURN, a municipal corporation of the
State of Wash gton (hereinafter referred to as the "City"), and Yeriel, LLC, a Washington limited
liability company(hereinafter referred to as"Yeriel").
WITNESSETH:
WHEREAS, the City of Auburn filed a lawsuit for damages against Yeriel LLC clamming
that the company trespassed on its land and destroyed trees and other vegetation that were at the
base of a twenty-two foot sign, and,
WHEREAS,Yenel LLC filed a counter-claim that contended that the City had breached its
contract with Yenel for use of the sign;and,
WHEREAS,the parties have agreed to settle the matters by sharing the use of the sign.
NOW THEREFORE in consideration of their mutual covenants, conditions and promises, THE
PARTIES HERETO DO HEREBY AGREE as follows:
PRENUSES. "The Sign" shall mean the twenty-two foot structure that at the time of execution of
this agreement lies just north of the boundary between the City's property (recorders no
9309092130), whicht lies at the divergence of Auburn Avenue and Auburn Way North, and
Yeriel's property(parcel no 1821059116)
"Auburn Sign Faces" means the two top cabinets of The Sign that holds four acrylic faces, two on
each side of The Sign The two top front and back faces measure 4 feet, 5 inches, by 8 feet, 1 inch,
and the two lower front and back faces measure 2 feet, 8 inches,by 8 feet 1 inch.
SIGN USAGE. Yenel grants to the City perpetual use of 57 1/4 square feet of sign display on each
side of The Sign for the purpose of advertising for the City This use shall be of the Auburn Sign
Faces, as defined above The City has the right to post, change, illuminate and maintain signs on
the Auburn Sign Faces,pursuant to the terms and conditions of this Agreement
The Sign shall always remain the property of Yenel, but may not be removed prior to the
termination of this agreement, unless The Sign is either no longer repairable or poses a safety
hazard, as determined by a sign professional or agreed by the parties, or Yeriel is prevented by law
from maintaining The Sign
Yeriel further grants to the City use, pursuant to the terms and conditions of this Agreement, of a
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proportional amount of space on any replacement sign erected by Yeriel during the term of this
agreement.
TERM The term of this agreement shall be perpetual beginning on the date this agreement is
executed by both parties
PERMITS. It is a condition precedent of this agreement that Yeriel shall obtain permits for
performing the work related to the sign structure and Yenel's sign faces listed on the Shoreline
Sign-Awning Proposal Contract, dated 4/21/11, which is attached as Exhibit A, and for use of the
sign by Yeriel Failure to obtain such permits within ninety(90) calendar days from the date of the
frill execution of this agreement shall render this agreement null &void. The City agrees to obtain
permits for work related to its sign faces
RENUMERATION The City agrees to pay Yeriel $60 per year for the electrical cost of lighting
the City's portion of the sign. Payment shall be made by the City byJanuary I of each year. Yenel
may increase this amount in proportion to increases in the utility costs to supply electricity to the
sign. Yeriel must provide 30 calendar days prior written notice, with documentation of the
increase, to the City
CONTENT. The City agrees to display only government, civic, and community related images
and text on the Auburn Sign Faces provided that the City shall have the authority to sublease use of
the sign faces to not-for-profit organizations that advertise not for profit entities, events or
enterprises. Yenel agrees that it shall waive its first amendment right and agree to only display,and
permit its tenant's to display, commercial images and text that are related to the goods and/or
services of the business located on the property and shall not display politically-related content or
content related to political campaigns.
Neither party's right to have sign displays located on its portion of the sign shall be contingent upon
the other party using its portion of the sign.
INSTALLATION& MAINTENANCE. Each party shall be responsible for design, fabrication,
and installation of the displays on its sign faces. Each party shall be responsible for the
maintenance and repair of their respective sign faces and be independently responsible for lamp
replacement of the party's sign faces. Each party agrees to keep their sign displays in good
condition, free of holes, cracks, and other damage. If either party fails to comply, the other party
shall give written notice of the violating condition and request repair. If the other party does not
repair the condition within ten business days, the parry may repair the condition itself and bill the
responsible party for the reasonable cost of the repair, which the responsible party shall pay
Other than the cost of the electricity supplied to the sign, Yeriel shall be solely responsible for the
cost of any maintenance and repairs of the sign structure Yeriel agrees to periodically inspect and
maintain the sign structure and paint and perform other repairs and maintenance such that the
structure appears and is in good condition and repair, is not a danger, and does not impact the
visibility of the sign displays This maintenance shall include cleaning and periodic painting
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The City agrees to maintain its right-of-way property such that the vegetation does not diminish the
visibility of the sign faces to drivers on North Auburn Way
TERMINATION FOR CONVENIENCE. The City may terminate its obligations and
responsibilities under this agreement at any time by 30 days written notice to Yenel. If the City
exercises this option, it will remove, at its sole cost,the sign displays from the Auburn Sign Faces,
and make any repairs caused by such removal. Further, such termination by the City shall not effect
Yeriel's rights of continued sign usuage of the sign, including its right, upon termination, to use
what, prior to termination, had been described as Auburn Sign Faces. In addition, such termination
by the City shall terminate any restrictions, including content, of this Agreement, relating to
Yeriel's use of the sign,including the Auburn Sign Faces
It is the intent of the parties that the easement retained by the City as part of its conveyance of the
property underneath the sign to Yeriel be conditioned upon the survival of this agreement The City
agrees that it will record all necessary documents to extinguish the easement within 30 days of the
City terminating this agreement. Failure to do so shall constitute breach of this agreement.
RISK OF LOSS OR DAMAGE City assumes only the risk of loss or damage to its sign display,
and damage or injury caused by its sign display Yenel assumes all risk and loss from, or caused
by,the remaining portion of the sign
INDEMNIFICATION
A. The City shall indemnify and hold Yeriel and its agents, employees, and/or officers,
harmless from and shall process and defend at its own expense any and all claims, demands, suits,
at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature,brought
against the Yeriel arising out of Auburn's use of the Auburn Sign Faces, PROVIDED, however,
that if such claims are caused by or result from the concurrent negligence of Yenel, its agents,
employees, and/or officers, this indemnity provision shall be valid and enforceable only to the
extent of the negligence of the City, and PROVIDED FURTHER, that nothing herein shall require
the City to hold harmless or defend Yeriel, its agents, employees and/or officers from any claims
arising from the sole negligence of Yeriel its agents, employees, and/or officers. No liability shall
attach to the City by reason of entering into this Agreement except as expressly provided herein
B Yenel shall indemnify and hold the City and its agents, employees,and/or officers, harmless
from all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of
whatsoever kind or nature, brought against the City and arising out of, in connection with, or
incident to Yenel's use or ownership of The Sign and performance of this Agreement,
PROVIDED, however,that if such claims are caused by or result from the concurrent negligence of
the City its agents, employees, and/or officers, this indemnity provision shall be valid and
enforceable only to the extent of the negligence of Yeriel, and PROVIDED FURTHER, that
nothing herein shall require Yenel to hold harmless or defend the City, its agents, employees and/or
officers from any claims arising from the sole negligence of the City, its agents, employees, and/or
officers. No liability shall attach to Yeriel by reason of entering into this Agreement except as
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expressly provided herein
C. It is further specifically and expressly understood that the indemnification provided
herein constitutes the Parties' waiver of immunity under Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification This waiver has been mutually negotiated by the
parties The provisions of this section shall survive the expiration or termination of this
Agreement
FORCE MAJEURE. The obligations of Yeriel under this agreement shall be suspended to the
extent it is hindered or prevented from complying with this Agreement because of labor disputes,
acts of God, fire, storm, accident,or any other cause beyond the control of Yenel.
COMPLIANCE WITH REGULATIONS AND LAWS. The parties shall comply with all
applicable rules and regulations pertaining to them in connection with the matters covered herein.
MODIFICATION. Any modification of this Agreement, or additional obligation assumed by
either party in connection with this Agreement, shall be binding only if evidenced in writing signed
by each party.
ASSIGNMENT The parties shall not assign this Agreement or any interest, obligation or duty
therein without the express written consent of the other party, provided, however, Yenel shall have
the absolute right to assign its interest and obligations and/or duties to any party and/or entity
purchasing the real property, presently owned by Yenel, and located at 415 Auburn Way N.,
Auburn, Washington. Further, use by any tenant of Yenel and/or the owner of the real property
located at 415 Auburn Way N. Auburn, Washington, shall not be deemed an assignment, for
purposes of this Agreement. The City may sublease Auburn's Sign Face as long as the content of
the sign shall abide by the CONTENT paragraph above
ATTORNEYS' FEES If either party shall be required to bring any action to enforce any
provision of this Agreement, or shall be required to defend any action brought by the other party
with respect to this Agreement, and in the further event that one party shall substantially prevail in
such action, the losing party shall, in addition to all other payments required therein, pay all of the
prevailing party's reasonable costs in connection with such action,including such sums as the court
or courts may adjudge reasonable as attorney's fees in the trial court and in any appellate courts
MISCELLANEOUS
A All of the covenants, conditions and agreements in this Agreement shall extend to
and bind the legal successors and assigns of the parties hereto.
B This Agreement shall be deemed to be made and construed in accordance with the
laws of the State of Washington junsdiction and venue for any action ansing out of this Agreement
shall be in of the county in Washington State in which the property or project is located, and if not
site specific,then in King County,Washington.
C. The captions in this Agreement are for convenience only and do not in any way limit
or amplify the provisions of this Agreement.
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D If any term or provision of this Agreement or the application thereof to any person
or circumstance shall, to any extent, be held to be mvand or unenforceable by a final decision of
any court having jurisdiction on the matter, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and shall continue in full force and effect, unless such
court determines that such invalidity or unenforceability materially interferes with or defeats the
purposes hereof, at which time the City shall have the right to terminate the Agreement.
E This Agreement constitutes the entire agreement between the parties. There are no
terms, obligations, covenants or conditions other than those contained herem. No modifications or
amendments of this Agreement shall be valid or effective unless evidenced by an agreement in
writing signed by both parties
NOTICES. Any notice concerning this agreement shall be in writing and shall be sent to the
following address, or to such other respective addresses as either party hereto may hereafter from
time to time designate in writing
The City: Director, Planning&Development Department
1 East Main Street
Auburn, WA 98001
Yenel: George Sharawy,Registered Agent
22324 Hwy 99
Edmonds, WA 98026
G Paul Carpenter
Anderson Hunter Law Firm
2707 Colby Ave., Ste. 1001
Everett,WA 98201
Notices may be given by personal service or by regular mail, postage prepaid, or by certified mail
All notices and payments mailed by regular post(including first class) shall be deemed to have been
given on the third business day following the date of mailing, if properly mailed and addressed
Notices and payments sent by certified or registered mail shall be deemed to have been given on the
day next following the date of mailing, if properly mailed and addressed. For all types of mail, the
postmark affixed by the United States Postal Service shall be conclusive evidence of the date of
mailing.
INSURANCE The Parties shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons or damage to property which may arise from or in
connection with operations or activities performed by or on the Parties' behalf with this
Agreement.
A. Minimum Scope of Insurance. Each Party shall obtain insurance of the type
described below
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I Commercial General Liability insurance shall be written on Insurance Services
Office(ISO)occurrence form CG 00 01 and shall cover products liability. Each Parry shall be
named as an insured under the Party's Commercial General Liability insurance policy using ISO
Additional Insured-State or Political Subdivisions-Permits CG 20 12 or a substitute endorsement
providing equivalent coverage
B. Minimum Amounts of Insurance. Each Party shall maintain Commercial
General Liability insurance written with limits no less than $1,000,000 each occurrence,
$2,000,000 general aggregate and a$2,000,000 products-completed operations aggregate limit
C. Verification of Coverage. Each Parry shall furnish the other with original
certificates and a copy of the amendatory endorsements, including the additional insured
endorsement or equivalent coverage, evidencing the insurance requirements of the Party.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year
first above written.
YERIEL LLC BURN
By.
''// Peter B. Lewis,Mayor
Title rl
Attest. Attest:kaa�4
City Clerk
Approved as to form
Attorney for Yeriel LLC b
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