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HomeMy WebLinkAboutYeriel CITY OF AUBURN - YERIEL SIGN USE AGREEMENT s' 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 Page 1 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 Page 2 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 Page 3 I 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. Page 4 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 Page 5 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 Page 6