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HomeMy WebLinkAboutR-2013-105 Capitol Theatre Office Space Lease Agreement with The Tower, LLCRESOLUTION NO. R- 2013 -105 A RESOLUTION concerning Administration, authorizing the City Manager to execute a Lease Agreement between The Tower, LLC and the City of Yakima to provide office space to house the Capitol Theatre staff. WHEREAS, the Capitol Theatre is owned by the City of Yakima and is operated on the City's behalf by the Capitol Theatre Committee; and WHEREAS, the Capitol Theatre Committee hires and employs staff members to provide the day to day operations of the Theatre; and WHEREAS, the City leases space from The Tower, LLC in the downtown Tower building to provide office space for the Capitol Theatre staff ; and WHEREAS, recently due to reductions in staff support for the Capitol Theatre and in an effort to reduce Theatre operating overhead where possible, the City and The Tower, LLC have agreed upon a reduced lease space within the Tower building that will adequately house the Capitol Theatre staff and also reduce the cost of leased space on behalf of the Theatre; and WHEREAS, the new Lease, attached hereto and incorporated herein by this reference will replace the previous agreement, and will allow the Theatre staff to remain in the premises they previously occupied, but with a reduction in the leased area and in the monthly rent; and WHEREAS, the City Council finds it to be in the best interests of the City to enter into the attached Lease Agreement to provide for office space necessary and appropriate to the needs of the Capitol Theatre staff at a reduced cost to the City; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated Lease Agreement with The Tower, LLC for office space to house the Capitol Theatre staff in the Tower building in downtown Yakima. ADOPTED BY THE CITY COUNCIL this 20th day of August, 2013. EST: Micah Cawley ayor Sony aar Tee, City tie �`� THE TOWER TENANT LEASE TO CITY OF YAKIMA (Capitol Theatre Administrative Offices) TENANT July , 2013 PI 1 I LEASE AGREEMENT 1.0 BASIC LEASE PROVISIONS 1.1 LANDLORD: THE TOWER, LLC ADDRESS: THE TOWER 402 E YAKIMA AVENUE SUITE 1200 YAKIMA WA 98901 Phone: (509) 248 -4040 1.2 TENANT: CITY OF YAKIMA / (Capitol'Theater Administrative Offices) ADDRESS. 402 E YAKIMA AVENUE SUITE�� YAKIMA WA 98901 PHONE NUMBER: (509) 853 -8000 1.3 PREMISES: The Tower, Yakima, Washington, Suite —n'7 n consisting of approximately 1216 square feet. 1.4 PERMITTED USES: General Office 1.5 LEASE TERM: Two Years 1.6 COMMENCEMENT DATE: August 1, 2013 1.7 TERM TERMINATION DATE: July 31, 2015 1.8 BASE RENT: EIGHTEEN HUNDRED TWENTY FOUR AND NO /100THS DOLLARS ($1,824.00) per month payable monthly in advance on or before the first day of each i is \shared \legal assistant \tower leases \city of yakima - capitol theatre pgi.doc 7/15/2013 2.0 5.0 3.0 M 3.0 4.1 J � calendar month but subject to an automatic increase (based on the consumer price index) on August 1, 2014. 1.8.1 Consumer Price Index Base Month: May 2013 4.2 1.8.2 Minimums and Maximums: Minimum- 3% 4.2 Maximum- 6% 1.9 TAX INCREASE BASE YEAR: 2013 1.10 PARKING: NONE 1.11 SECURITY DEPOSIT: NONE ii i \shared \legal assistant \tower leases \city of yakima - capitol theatre pgi.doc 7/15/2013 4.3 THE TOWER YAKIMA, WASHINGTON OFFICE BUILDING LEASE THIS LEASE is made this day of July, 2013 between THE TOWER, LLC, a Washington limited liability company, ( "Landlord ") and CITY OF YAKIMA, ( "Tenant "). 1.0 BASIC LEASE PROVISIONS: The Basic Lease Provisions on the previous pages (i) and (ii) are hereby incorporated into this Lease. 2.0 DEMISED PREMISES: Landlord hereby leases to Tenant and Tenant leases from Landlord those certain premises located in THE TOWER BUILDING (hereinafter the "Building ") designated on the floor plan attached hereto as Exhibit "A" (the "Demised Premises "), and more particularly described in section 1.3 of this Lease (page i above), located on the following described real property situate in the City of Yakima, Yakima County, Washington, to wit: Lots 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, Block 91, TOWN OF NORTH YAKIMA, now YAKIMA, as re- recorded in Volume "E" of Plats, Page 1, Records of the Auditor of Yakima County, Washington, known as THE TOWER, Yakima, Washington (hereinafter the "Building "), together with a non - exclusive right, subject to the provisions hereof, to use all appurtenances thereunto, Including but not limited to, other areas and facilities designated by Landlord for use in common by tenants of the Building (Common Areas). The Building and real property on which the same is situated, the Tower Annex building, and other areas and appurtenances are hereinafter collectively sometimes called the "Building Complex" This Lease is subject to the terms, covenants and conditions set forth herein and Tenant and Landlord each covenant as a material part of the consideration for this Lease to keep and perform each and all of said terms, covenants and conditions by it to be kept and performed and that this Lease is made upon the condition of such performance. 1 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 i] i 2.1 There is no Section 2.1 to this Lease. 2.2 Right to Relocate: Landlord shall have the right at any time during the term of this Lease, upon giving Tenant sixty (60) days notice in writing, to provide and furnish Tenant with like space elsewhere in the Building of approximately the same size and area as the herein demised space and at Landlord's expense to remove and replace Tenant in such new space. Should Tenant refuse to permit the Landlord to move Tenant to such new space at the end of the 60 -day period, the Landlord shall have the right to cancel and terminate this Lease, effective immediately, without further notice. In the event Landlord relocates Tenant to such new space, then this Lease shall be amended to reflect the Tenant's relocation and each and all of the terms, covenants and conditions thereof, shall thereupon remain in full force and effect and be deemed applicable to such new space. 3.0 TERM: The term of this Lease shall be as described in section 1.5 commencing on the date set forth in section 1.6, or as soon thereafter as the Demised Premises may be ready for occupancy, and shall end on the date set forth in section 1.7 unless sooner terminated pursuant to any of the provisions of this Lease. 3.1 Holding Over: In the event Tenant remains in possession of the Demised Premises after the expiration or termination of this Lease without Landlord's consent or without the execution of a new lease or in the absence of ongoing, good faith negotiations for a renewal of this Lease, as evidenced by Tenant's receipt of a written notice from Landlord confirming such, Tenant, at the option of Landlord, shall be deemed to be occupying the Demised Premises as a tenant from month -to- month, terminable by either party upon thirty (30) days prior written notice to the other party, at a rental rate equal to twice the Monthly Rent and Additional Rent payable, if any, on account of the Lease Year immediately preceding such expiration or termination. Otherwise Tenant's occupancy of the Demised Premises after expiration or termination of this Lease shall be subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month -to -month tenancy. 4.0 RENT: 4.1 Base Rent: Tenant agrees to pay to Landlord, in advance, on or before the first day of each and every month during the term hereof, at the offices of the Landlord (as set forth in section 1.1 of the Basic Lease Provisions [page i]), or at such other place as Landlord may from time to time designate (by written notice to the Tenant), the Base Rent set forth in section 1.8 of this Lease (page ii above). Rent for a part of the month shall be prorated in proportion to the number of days in said month. 2 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 4.2 Adiustment To Rent -- Consumer Price Index: The Base Rent to be paid to Landlord by Tenant shall be adjusted effective on the date specified in section 1.8 each year of the Lease Term to an amount equal to the Base Rent multiplied by a fraction, the numerator of which shall be the Consumer Price Index -- Bureau of Labor Statistics All Urban Consumers West A Index as published by the United States Department of Labor (Index) for the month of May immediately preceding the August 1st adjustment, and the denominator of which shall be the same Index published for the month of May of the year set forth in section 1.8.1 of the Basic Lease Provisions (page ii hereof). In no event shall the monthly Rent be reduced. Adjustments to Rent pursuant to this section 4.2 shall be subject to the provisions of section 4.2.2 below. 4.2.1 Publication Dates: In the event that the Index is published less frequently than monthly, then the increase reflected in the next published Index shall be used. All increases in Rent shall relate back to Rent payable since the last Rent adjustment. 4.2.2 Minimum and Maximum Increases: Notwithstanding anything above to the contrary, should any such adjustment to the monthly base rental result in a rental increase that is less than the minimum percentage annual rental increases set forth in section 1.8.2 of the Basic Lease Provisions, then in such event, the increase in Base Rent shall be as provided in said Basic Lease Provisions section of this Lease. In no event shall the increase to Base Rent exceed the maximum annual increase as provided in said section 1.8.2 of the Basic Lease Provisions. 4.2.3 Changes to Index: If the Index is changed, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the term, such other governmental index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. 4.3 Tax Adiustment: Tenant agrees to pay to Landlord as additional rent the Tenant's pro rata share of any increase in property taxes over the tax increase base year set forth in section 1.9 of the Basic Lease Provisions (page ii hereof). Property taxes shall mean all real and personal property taxes or assessments, including LID assessments, levied against the Building Complex, including any costs incurred in obtaining a reduction of taxes, which cost shall be allocated to the period for which the reduction applies. Property taxes shall also include any tax levied in whole or in part in lieu of property tax. The Tenant's pro rata share of said increases shall be determined by dividing the total rentable square footage of the Demised Premises by the total rentable 3 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 square footage in The Tower available for lease. The Tenant's proportionate share of the tax increase shall be adjusted April 1 of each year and shall be billed and paid monthly in advance. 4.4 Personal Property Taxes: Tenant shall pay all personal property taxes with respect to property of Tenant located on the Demised Premises or in the Building or the Building Complex "Property of Tenant" shall include all improvements that are paid for by Tenant, and "personal property taxes" shall include all property taxes assessed against the property of Tenant, whether assessed as real or personal property. 4.5 There is no Section 4.5 of this Lease. 5.0 CHARACTER OF OCCUPANCY AND HAZARDOUS SUBSTANCES. 5.1 The Demised Premises are to be used for the purpose of conducting such business as is described in section 1.4 and for no other purpose. 5.2 Tenant shall not suffer nor permit the Demised Premises nor any part thereof to be used in any manner, nor anything to be done therein, nor suffer or permit anything to be brought into or kept therein, which would in any way (i) make void or voidable any fire or liability insurance policy then in force with respect to the Building; (ii) make unobtainable from reputable insurance companies authorized to do business in the State of Washington any fire insurance with extended coverage, or liability, elevator, boiler or other insurance required to be furnished by Landlord under the terms of any lease or mortgage to which this Lease is subordinate at standard rates provided Tenant is not deprived of its intended use of the Demised Premises; (iii) cause or in Landlord's reasonable opinion be likely to cause physical damage to the Building or any part thereof; (iv) constitute a public or private nuisance; (v) impair, in the reasonable opinion of Landlord, the appearance, character or reputation of the Building; (vi) discharge objectionable fumes, vapors or odors into the Building air conditioning system or into the Building flues or vents not designed to receive them or otherwise in such manner as may unreasonably offend other occupants; (vii) impair or interfere with any of the Building services or impair or interfere with or tend to impair or interfere with the use of any of the other areas of the Building by, or occasion discomfort, or annoyance to Landlord or any of the other tenants or occupants of the Building, any such impairment or interference to be in the reasonable judgment of Landlord; (viii) injure the reputation of the Building or permit the use of the Demised Premises for lodging or sleeping purposes; (ix) increase on an ongoing periodic basis the pedestrian traffic in and out of the Demised Premises or the Building above an ordinary level; (x) constitute waste; or (xi) make any noise or set up any vibration which will disturb other tenants, except in the course of permitted repairs or Oshared \legal assistant\tower leases\city of yakima ste 880 lease doc 7/15/2013 alterations. 5.3 Tenant shall not use the Demised Premises nor permit anything to be done In or about the Demised Premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall give prompt notice to Landlord of any notice it receives of the violation 'of any law or requirement of any public authority with respect to the Demised Premises or the use or occupation thereof. Landlord shall give prompt notice to Tenant of any notice it receives relative to the violation by Tenant of any law or requirement of any public authority with respect to the Demised Premises or the use or occupation thereof. 5.4 Hazardous Substances: The following provisions regarding hazardous substances are in addition to and not in lieu of the provisions of sections 5.1, 5.2 and 5.3 above. 5.4.1 Presence and Use of Hazardous Substances. Tenant shall not, without Landlord`s prior written consent, keep on or around the Premises, Common Areas or Buildings, for use, disposal, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic or harmful (collectively referred to as "Hazardous Substances "), and /or which are subject to regulation as Hazardous Substances by any federal, state or local law, regulation, statue or ordinance. With respect to any such Hazardous Substance, Tenant shall: (1) Comply promptly, timely, and completely with all governmental requirements for reporting, keeping and submitting manifests, and obtaining and keeping current identification numbers; (2) Submit to Landlord true and correct copies of all reports, manifests and identification numbers at the same time as they are required to be and /or are submitted to the appropriate governmental authorities; (3) Within five (5) days of Landlord's request, submit written reports to Landlord regarding Tenant's use, storage, treatment, transportation, generation, disposal or sale of Hazardous Substances and provide evidence satisfactory to Landlord of Tenant's compliance with the applicable governmental regulation; (4) Allow Landlord or Landlord's agent or representative to come on the Premises at all times to check Tenant's compliance with all 5 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 applicable governmental regulations regarding Hazardous Substances; (5) Comply with minimum levels, standards or other performance standards or requirements which may be set forth or established for certain Hazardous Substances (if minimum standards or levels are applicable to Hazardous Substances present on the Premises, such levels, ' standards shall be 'established by an onsite inspection by the � appropriate governmental authorities and shall be set forth in an addendum to this Lease); and (6) Comply with all governmental rules, regulations and requirements regarding the proper and lawful use, sale, transportation, generation`, treatment, and disposal of Hazardous Substances. In the event Tenant shall be found to have violated any of the above covenants, any and all costs incurred by Landlord and associated with Landlord's inspections of Tenant's Premises and Landlord's monitoring of Tenant's compliance with this section 5.4, including Landlord's attorneys fees and costs, shall be additional rent and shall be due and payable to Landlord immediately upon demand by Landlord. 5.4.2 Cleanup Costs, Default and Indemnification: (1) . Tenant shall be fully and completely liable to Landlord for any and all cleanup costs and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant's use, disposal, transportation, generation and /or sale of Hazardous Substances, in or about the Premises, Common Areas, or Building. (2) Tenant shall indemnify, defend and hold Landlord harmless from any and all of the costs, fees, penalties and charges assessed against or imposed upon Landlord (as well as Landlord's attorneys fees and costs) as a result of Tenant's use, disposal, transportation, generation and /or sale of Hazardous Substances. (3) Upon Tenant's default under this section 5.4, in addition to the rights and remedies set forth elsewhere in this Lease, Landlord shall be entitled to the following rights and remedies: (i) At Landlord's option, to terminate this Lease immediately; and 6 iAshared\legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 (ii) To recover any and all damages associated with the default, including, but not limited to cleanup costs and charges, civil and criminal penalties and fees, loss of business and sales by Landlord and other tenants of the Building, and any and all damages and claims asserted by third parties and Landlord's attorneys fees and costs. 6.0 SERVICES AND UTILITIES: 6.1 Standard Services: Landlord shall maintain the Demised Premises and the public and common areas of the Building, such as lobbies, stairs, corridors, and restrooms, in reasonably good order and condition, except for damage occasioned by the act or omission of Tenant, the repair of which damage shall be paid for by Tenant. Landlord shall furnish the Demised Premises with electricity for lighting and the operation of low power usage office machines, heat and normal air conditioning, and elevator service, during the ordinary business hours of the Building. Landlord shall also provide light replacement service for building standard light fixtures. If the Demised Premises are equipped with special lighting fixtures (whether installed by Tenant or by Landlord in response to Tenant's request), Tenant shall reimburse Landlord for the cost of replacement bulbs for such lighting fixtures and, if replacement is requested at times other than the Landlord's routine scheduled rounds for light bulb replacement, Tenant shall reimburse Landlord for Landlord's labor cost therefore. Landlord shall also provide toilet room supplies, window washing at reasonable intervals, and customary building janitor service. Such heat and air conditioning shall be furnished from the period from 7:00 a m. to 6.00 p.m. on weekdays (except holidays), which may be changed to other reasonable hours as solely determined by Landlord, or such shorter period as may be prescribed by any applicable policies or regulations adopted by any utility or governmental agency; provided, however, that Tenant shall bear the cost of any heating or air conditioning beyond that set forth above. 6.2 Interruption of Services: Landlord shall not be liable to Tenant for any loss or damage caused by or resulting from any variation, interruption or failure of such services due to any cause whatsoever. No temporary interruption or failure of such services incident to the making of repairs, alterations or improvements, or due to accident or strike, or conditions or events beyond Landlord's reasonable control, shall be deemed a constructive eviction of Tenant or relieve Tenant from any of Tenant's obligations hereunder. 6.3 Excess Heat and Electrical Use: Before installing any equipment in the Demised Premises that generates more than a minimum amount of heat, Tenant shall obtain the written consent of Landlord, and Landlord may refuse to grant such 7 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 consent if the amount of heat generated would place an undue burden ;on the air conditioning system for the Building. Landlord hereby consents to the Tenant's installation and use of personal computers on the Demised Premises up to a maximum of one per employee working on the Demised Premises. If Tenant uses any high power usage equipment on the Demised Premises, Tenant shall, in advance, on the first day of each month during the Lease Term, pay Landlord as additional Rent the reasonable amount estimated by Landlord as the cost of furnishing electricity for the operation of such equipment. The monthly Rent stated in this Lease does not include any amount to cover the cost of furnishing additional electricity for such equipment. Whenever heat generating machines or equipment are used by Tenant in the Demised Premises which affect the temperature otherwise maintained by the air conditioning system, Landlord reserves the right to install supplementary air conditioning units in the Demised Premises in the event Landlord's independent consulting engineer determines same are reasonably necessary as a result of Tenant's use of lights or equipment which generate heat loads in excess of those for which the HVAC system is designed and the cost therefor, including the cost of installation, operation and maintenance thereof, shall be paid as additional rent by Tenant to Landlord upon demand by Landlord. 7.0 QUIET ENJOYMENT: Landlord warrants and agrees to defend Tenant in the quiet enjoyment and possession of the Demised Premises during the term of this Lease so long as Tenant complies with the provisions hereof and is not in default beyond any applicable cure period. 8.0 MAINTENANCE AND REPAIRS: 8.1 Landlord Repairs and Maintenance: Landlord shall make all necessary repairs and replacements to the non - leasable areas of the Building, to the heating, air conditioning and electrical systems located in the Building and to the common areas, and Landlord shall also make all repairs to the Demised Premises which are structural in nature; provided, however, that Tenant shall reimburse Landlord for all repairs and replacements arising from Tenant's act, neglect or default and that of its agents, servants and employees, and Landlord may require Tenant to secure such reimbursement by deposit or bond prior to undertaking such repairs. 8.1.1 Governmental Compliance: In the event that the Landlord shall deem it necessary, or be required by any governmental authority to repair, alter, remove, reconstruct or improve any part of the Demised Premises or of the Building (unless the same result from Tenant's act, neglect, default or mode of operation), then the same shall be made by Landlord with reasonable dispatch, and should the making of such repairs, alterations or improvements cause any 8 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 interference with Tenant's use of the Demised Premises, such interference shall not relieve Tenant from the performance of its obligations hereunder. 8.2 Tenant Repairs and Maintenance: Tenant, at Tenant's sole cost and expense, except for services furnished by Landlord pursuant to section 6 hereof, shall maintain the Demised Premises in good order, condition and repair including the interior surfaces of the ceilings (if damaged or discolored due to the fault of Tenant), walls and floors, all doors, interior glass partitions or glass surfaces (not exterior windows); and to the extent such items exceed Building standards, plumbing pipes, electrical wiring, switches, fixtures and other special items subject to the provisions of section 14. Tenant agrees to promptly repair at Tenant's expense all injury to the Demised Premises, or to the Building of which they are a part, caused by moving the property of Tenant into, in, or out of the Building or the Demised Premises. In the event Tenant fails to maintain the Demised Premises in good order, condition and repair, Landlord shall give Tenant notice to do such acts as are reasonably required to so maintain the Demised Premises. In the event Tenant fails to promptly commence such work and diligently prosecute it to completion, then Landlord shall have the right, but shall not be required, to do such acts and expend such funds at the expense of Tenant as are reasonably required to perform such work. Landlord shall have no liability to Tenant for any damage, inconvenience or interference with the use of the Demised Premises by Tenant as a result of performing any such work. 8.3 Furniture and Other Items: Furniture, appliances, files and other items shall not be moved in or out of the Demised Premises during normal office hours, as determined by Landlord. No safe or other articles of over 1,000 pounds shall be moved into the Demised Premises without the consent of the Landlord which may be withheld at Landlord's sole judgment. Further, Landlord shall have the right to fix the position of any article of such weight in the Demised Premises. 8.4 Tenant's keys to Premises not to be duplicated and to be returned to Landlord on surrender of lease — Lock Change Out Fees: Landlord shall provide keys to the Demised Premises at the commencement of the Lease. Tenant shall not have duplicate keys made to the Demised Premises. If Tenant requires duplicate keys, it shall request same from Landlord, and Landlord will furnish duplicate keys at the Locksmith's cost plus 15 %. Upon surrender of Demised Premises by Tenant for any reason, Tenant shall return all keys to the Demised Premises which have been made available to Tenant or from any source whatsoever, to Landlord. If (i) keys provided to Tenant are lost, or (ii) Tenant secures duplicate keys to the Demised Premises from any source other than Landlord, or (iii) Tenant fails to return all keys provided by Landlord, then in any said events, Tenant shall promptly pay to Landlord a lock Change Out Fee at the going rate then being charged by Locksmiths in the Yakima 9 is \shared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 area. 9.0 ALTERATIONS AND ADDITIONS: Tenant shall make no alterations, additions or improvements to the Demised Premises or any part thereof or make changes to locks on doors or add, disturb or in any way change any plumbing or wiring without obtaining the prior written consent of Landlord. Landlord may impose, as a condition to the aforesaid consent, such requirements as Landlord may deem necessary in its reasonable judgment. Those requirements will normally include requiring the Tenant to submit professionally prepared and reasonably detailed plans and specifications for the work for Landlord's prior written approval, requiring the Tenant to use the contractor designated by Landlord, and reimbursing Landlord for any reasonable sums expended for plan review and costs of inspection of Tenant's work. Those requirements may include without limitation the manner in which the work is done, and the times during which it is to be accomplished. 10.0 ENTRY BY LANDLORD: Landlord and its agents shall have the right to enter the Demised Premises at all reasonable times and upon reasonable notice for the purpose of examining or inspecting the same, to supply any services to be provided by Landlord for Tenant hereunder, to show the same to prospective purchasers of the Building, to make such`aIterations, repairs, improvements or additions to the Demised Premises or to the Building of which they are a part as Landlord may deem necessary or desirable, and to show the same to prospective tenants of the Demised Premises (provided that in the event of a bona fide emergency, Landlord may enter the Demised Premises without advance notice solely for the purpose of taking emergency action). Landlord may, for the purpose of supplying scheduled janitorial services, enter the Demised Premises by means of a master key without liability to Tenant and without affecting this Lease. If, during the last sixty (60) days of the term hereof, Tenant shall have removed substantially all of its property from the Demised Premises, Landlord may immediately enter and alter, renovate and redecorate the Demised Premises without elimination or abatement of Rent or incurring liability to Tenant for any compensation. Tenant shall not, without the prior consent of Landlord, change the locks or install additional locks on any door or doors to the Demised Premises. 11.0 LIENS AND INSOLVENCY: 11.1 Liens: Tenant shall pay or cause to be paid all costs for work done by Tenant or caused to be done by Tenant on the Demised Premises of a character which will or may result in liens on Landlord's interest therein, and Tenant will keep the Demised Premises free and clear of all mechanic's liens and other liens on account of work done for Tenant or persons claiming under it. Tenant hereby agrees to indemnify, defend and save the Landlord harmless of and from all liability, loss, damage, costs or 10 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 expenses, including reasonable attorneys fees, incurred on account of any claims of any nature whatsoever for work done by or caused to be done by Tenant, or materials or supplies furnished to Tenant, including lien claims of laborers, materialmen or others. 11.2 Insolvency: Tenant shall be deemed to be in default of this Lease upon the occurrence of one or more of the following events: (i) any judicial determination of the insolvency of Tenant or any of Tenant's guarantors including, without limitation, the entry of an Order for Relief pursuant to the provisions of the Bankruptcy Code whether voluntary or involuntary; (ii) appointment of a receiver or a custodian or other similar officer for any portion of Tenant's property or of Tenant's guarantors; (iii) the assignment for the benefit of creditors of any portion of Tenant's property or of Tenant's guarantors; (iv) a determination, judicial or otherwise, that Tenant is not generally paying its debts as such debts become due; or (v) any fact, event or circumstance which in the reasonable opinion of Landlord indicates that Tenant is insolvent or otherwise incapable of meeting the financial and other obligations imposed upon Tenant under this Lease; (provided, however, that if any such action, case or petition has been commenced against Tenant or Tenant's guarantors and the same is dismissed within a period of sixty (60) days, then the event of default shall be deemed cured for purposes hereof) whereupon Landlord may elect by notice to Tenant to cancel and terminate this Lease, in which event neither Tenant nor any person claiming through or under Tenant by virtue of any statute or of an order of any court shall be entitled to possession or to remain in possession of the Demised Premises but shall forthwith quit and surrender the same; and Landlord, in addition to the other rights and remedies Landlord has by virtue of this Lease or any statute or rule of law, may retain as security for its damages any Rent, Security Deposit or monies received by Landlord from Tenant or others on behalf of Tenant. This Lease is upon the further condition that if a petition for relief under any chapter of the Bankruptcy Code is filed by or against Tenant or any guarantor and the trustee or debtor or debtor in possession has not cured all defaults hereunder and assigned or assumed this Lease under the Bankruptcy Code within sixty (60) days after the entry of the order for relief, then this Lease shall automatically terminate without the necessity of further action by or notice from either party. In case of termination pursuant to any of the foregoing provisions of this paragraph, Tenant shall indemnify Landlord against all costs and expense and loss of Rent. 12.0 DAMAGE TO PROPERTY, INJURY TO PERSONS: 12.1 Tenant's Waiver and Indemnification: Tenant hereby indemnifies and agrees to hold Landlord harmless from and to defend Landlord against any and all claims of liability for any injury or damage to any person or property whatsoever- (i) occurring in, on or about the Demised Premises or any part thereof; and (2) occurring in, 11 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 or about the Building Complex, when such injury or damage is caused in part or in whole by the act, neglect, fault or omission of any duty with respect to the same by Tenant, its agents, contractors, employees or invitees except those liabilities arising out of the duties and responsibilities of Landlord as set forth in this Lease, or liabilities arising from the intentional acts or negligence of Landlord or its agents or representatives. Tenant further indemnifies and agrees to hold Landlord harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or negligence of Tenant, or any of its agents, contractors, employees or invitees, from and against all costs, attorneys fees, expenses and liabilities incurred in or about any such claim or any action or proceeding brought thereon. 12.2 Release of Landlord: Landlord shall not be liable to Tenant for any damage to personal property resulting from the carelessness, negligence or Improper conduct on the part of a co- tenant or anyone other than Landlord, or for any damage to person or property resulting from any condition of the Premises or other cause, including but not limited to damage by water, not resulting from negligence of Landlord. Tenant shall give Landlord prompt notice of any defects in the Demised Premises to be remedied by Landlord. To the extent not covered by normal fire and extended coverage insurance, Tenant agrees to pay for all damage to the Building Complex, as well as all damage to tenants or occupants thereof, caused by Tenant's misuse or neglect of the Demised Premises or any portion of the Building Complex. 12.3 Loss or Damage to Tenant's Property: Neither Landlord nor its agents shall be liable for any damage to property entrusted to Landlord, its agents or employees of the building manager, if any, nor for the loss or damage to any property by theft or otherwise, by any means whatsoever, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, sprinkler system leakage, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place or resulting from dampness or any other cause whatsoever; provided, however, nothing contained herein shall be construed to relieve Landlord from liability for any personal injury resulting from its negligence or that of its agents, servants or employees. Landlord or its agents shall not be liable for any latent defect in the Demised Premises or in the Building. Tenant shall give prompt notice to Landlord in case of fire or accidents in the Demised Premises or in the Building or of defects therein or in the fixtures or equipment. 13.0 INSURANCE: 12 6shared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 13.1 Liability and Property Damage: Tenant shall procure and keep in effect throughout the term of this Lease, General Liability insurance including damage for bodily injury and property damage naming the Landlord as Additional Insured in the sum of at least One Million Dollars ($1,000,000) Per Occurrence and Two Million Dollars ($2,000.000) Aggregate Limits. Tenant shall deliver said policies or certificates including a copy of the Additional Insured endorsement to Landlord prior to initial occupancy and continuously maintain such coverage thereafter. All insurance policies shall be with companies reasonably approved by Landlord and each policy and certificate shall provide that it is not subject to cancellation or reduction in coverage except after thirty (30) days notice to Landlord. Landlord shall have the right, upon not less than thirty (30) days prior written notice, to raise the limits hereinabove set forth not more often than annually during the term of this Lease. In the event Tenant fails to provide proof of such insurance coverage within three (3) days following Landlord's written request therefor, Landlord may, at its option, procure the same for the account of Tenant, and the cost thereof, plus fifteen percent (15 %) administrative fee, shall be paid to Landlord upon receipt by Tenant of bills therefor. 13.2 Fire and Extended Coverage: Tenant shall procure and maintain at its own cost during the term of this Lease and any extension hereof fire and extended coverage insurance on property of Tenant in the amount of the full replacement value thereof. 13.3 Waivers of Subrogation: The parties shall obtain from their respective insurance carriers waivers of subrogation against the other party, agents, employees and, as to Tenant, invitees. Neither party shall be liable to the other for any loss or damage caused by fire or any of the risks enumerated in a standard fire insurance policy with an extended coverage endorsement if such insurance was obtainable at the time of such loss or damage. Each party hereby releases the other party with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or destruction with respect to its property (including the Building, Building Complex, the Demised Premises and rental value or business interruption) occurring during the term of this Lease to the extent to which it is insured under a policy or policies containing a waiver of subrogation or permission to release liability or naming the other party as an additional insured as provided above. 13.4 Landlord Not Liable: Any building employee to whom property shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's agent with respect to such property and neither Landlord nor its agents shall be liable for 13 is \shared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 any damage to the property of Tenant or others entrusted to employees of the Building, nor for the loss of or damage to any property of Tenant by theft or otherwise. 13.5 No Representation: Landlord makes no representation that the limits of liability specified to be carried by Tenant under the terms hereof are adequate to protect Tenant; if Tenant deems this insurance to be inadequate, Tenant shall, at its own expense, provide such additional insurance as necessary. 14.0 DAMAGE OR DESTRUCTION TO PREMISES: If the Demised Premises are damaged by fire or other casualty, then Landlord may, at Landlord's option, exercised in writing within thirty (30) days of written notice of damage from Tenant, elect to terminate this Lease or to repair the damages. If Landlord elects to repair the damages, Landlord shall at Its own expense, without unnecessary delay, repair the damages. If Landlord elects to repair, Tenant shall pay the cost of repairing any Tenant improvements in the Demised Premises other than the Building itself and building standard improvements. Tenant shall be entitled to an abatement of rent in fair proportion to the amount and nature of the damage sustained, until the Demised Premises are made fit for occupancy and use. Provided, however, that Tenant shall not be entitled to an abatement of rent if such damage was caused by the negligence or willful misconduct of Tenant or Tenant's employees or invitees. 15.0 CONDEMNATION: 15.1 Entire Taking: If all of the Demised Premises or such portions of the Building as may be required for the reasonable use of the Demised Premises are taken by eminent domain, this Lease shall automatically terminate as of the date title vests in the condemning authority. In the event of a taking of a material part of but less than all of the Building, where Landlord shall determine that the remaining portions of the Building cannot be economically and effectively used by it (whether on account of physical, economic, aesthetic or other reasons) or where Landlord determines the Building should be restored in such a way as to materially alter the Premises, Landlord shall forward a written notice to Tenant of such determination not more than sixty (60) days after the date of taking. The term of this Lease shall expire upon such date as Landlord shall specify in such notice but not earlier than sixty (60) days after the date of such notice. 15.2 Partial Taking: Subject to the provisions of the preceding section 15.1, in case of taking of a part of the Demised Premises or a portion of the Building not required for the reasonable use of the Demised Premises, then this Lease shall continue in full force and effect, and the Rent shall be equitably reduced based on the proportion by which the floor area of the Demised Premises is reduced, such Rent reduction to be 14 iAsharedVegal assistanNower leaseslcity of yakima ste 880 lease.doc 7/15/2013 effective as of the date title to such portion vests in the condemning authority. If a portion of the Demised Premises shall be so taken which in Tenant's reasonable judgment renders the remainder of the Demised Premises unsuitable for continued occupancy by Tenant under this Lease, Tenant may terminate this Lease by written notice to Landlord no later than sixty (60) days after the date of such taking, and the term of this Lease shall expire upon such date as Tenant shall specify in such notice not later than sixty (60) days after the date of such notice. 15.3 Awards and Damages: Landlord reserves all rights to damages to the Premises for any partial, constructive or entire taking by eminent domain, and Tenant hereby assigns to Landlord any right Tenant may have to such damages or award. Tenant shall make no claim against Landlord or the condemning authority for damages for termination of the leasehold interest or interference with Tenant's business. Tenant shall have the right, however, to claim and recover from the condemning authority compensation for any loss to which Tenant may be put for Tenant's moving expenses, business interruption or taking of Tenant's personal property and leasehold improvements paid for by Tenant (not including Tenant's leasehold interest) provided that such damages may be claimed only if they are awarded separately in the eminent domain proceedings and not out of or as part of the damages recoverable by Landlord. 16.0 ASSIGNMENT AND SUBLETTING; 16.1 Neither Tenant nor its successors or assigns shall transfer, assign, mortgage or encumber this Lease, by operation of law or otherwise, or sublet or permit the Demised Premises, or any part thereof, to be used by others, without the prior written consent of Landlord in each instance. If Tenant is a corporation whose shares are not regularly traded on a public stock exchange, or if Tenant is a limited liability company, any transfer of any of Tenant's issued and outstanding capital stock or any issuance of additional capital stock, or any transfer of membership units, as a result of which the majority of the issued and outstanding capital stock or membership units of Tenant is held by a corporation, firm, or person or persons who do not hold a majority of the issued and outstanding capital stock of Tenant on the date hereof, shall be deemed an assignment under this section 16. If Tenant is a partnership, then any transfer of an interest in the partnership resulting in the withdrawal of a partner or the addition of a new partner, and regardless of whether it results in a change of management, shall be deemed an assignment under this section 16 unless each withdrawing partner and each new partner, as the case may be, acknowledge in writing his /her /its liability for the performance of Tenant's obligation hereunder for the balance of the lease term and such writing is delivered to Landlord at or prior to the effective date of said transfer. Any attempted transfer, assignment, subletting, mortgaging or encumbering of this Lease in violation of the foregoing shall be void and confer no rights upon any third person. No 15 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 permitted assignment or subletting shall relieve Tenant of any of its obligations under this Lease. 16.1.1 If, without complying with the provisions of section 16.1 above, this Lease is transferred or assigned by Tenant, or if the Demised Premises, or any part thereof, are sublet or occupied by anybody other than Tenant, whether as a result of any act or omission by Tenant, or by operation of law or otherwise, Landlord, whether before or after the occurrence of an event of default, may, in addition to, and not in diminution of or substitution for, any other rights and remedies under this Lease or pursuant to law to which Landlord may be entitled as a result thereof, collect rent from the transferee, assignee, subtenant or occupant and apply the net amount collected to the basic rent and additional charges herein reserved, but no such transfer, assignment, subletting, occupancy or collection shall be deemed a waiver of the provisions of this section or the acceptance of the transferee, assignee, subtenant, or occupant as Tenant, or a release of Tenant from the further performance by Tenant of its obligations under this Lease. 16.1.2 Transfers Incident to Corporate Mergers, Reorganizations, etc.: Notwithstanding any other provision of this Lease to the contrary, Tenant has the right to assign this Lease or sublet the Demised Premises in whole or in part to any subsidiary, affiliate or successor corporation or partnership, without Landlord's consent, upon giving Landlord ten (10) days prior written notice of such assignment or subletting. A "subsidiary" of Tenant shall mean any corporation or limited liability company not less than fifty percent (50 %) of whose outstanding voting stock or voting membership units shall at the time be owned, directly or indirectly, by Tenant. An "affiliate" of Tenant shall mean any corporation or limited liability company which, directly or indirectly, controls or is controlled by or is under common control with Tenant. For purpose of the definition of "affiliate ", the word "control" (including "controlled by" and "under common control with "), as used with respect to any corporation, limited liability company, partnership or association shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policy of a particular corporation, limited liability company, partnership or association, whether through the ownership of voting securities or by contract or otherwise. A "successor corporation or partnership" shall mean any corporation, limited liability company or partnership into which Tenant is merged or with which Tenant is consolidated or to which all or a substantial portion of Tenant's assets are transferred. 16.2 The consent by Landlord to any assignment, transfer, or subletting to any party, including a subsidiary, affiliate or successor corporation, limited liability company or partnership shall not be construed as a waiver or release of Tenant from the 16 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 terms of any covenant or obligation under this Lease, nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant of any covenant or obligation contained in this Lease, nor shall any such assignment or subletting be construed to relieve Tenant from obtaining the consent in writing of Landlord to any further assignment or subletting. In the event that the Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any subtenant of Tenant and hereby authorizes each such subtenant to pay said rent directly to Landlord. Tenant shall not mortgage or encumber this Lease without the prior written consent of Landlord. 17.0 STORAGE' SPACE LEASE INTEGRATED WITH THIS LEASE- If, at any time during the term of this Lease, the Tenant shall have entered into a Lease of storage space in the basement of The Tower Building or other storage areas of the Building Complex, said Storage Lease and this Lease are agreed to be so integrated that any default of the Tenant in the payment of rents or other charges under the Storage Lease will automatically constitute a default under the terms of this Lease, and any default of the Tenant in the payment of rents or other charges under this Lease shall automatically constitute a default under the terms of said Storage Lease. It is further understood and agreed that in the event of the termination of this Lease, either by mutual agreement of the parties, by expiration of the term or otherwise (whether voluntary or Involuntary), the Storage Lease shall automatically terminate as of the same date, but not the converse, i.e. termination of the Storage Lease will not effect an automatic termination of this Lease of commercial office space. 18.0 DEFAULT: 18.1 Cumulative Remedies: All rights of Landlord herein enumerated shall be cumulative, and none shall exclude any other right or remedy allowed by law. In addition to the other remedies provided in this Lease, Landlord shall be entitled to restrain by injunction the violation or attempted violation of any of the covenants, agreements or conditions of this Lease. 18.2 Tenant's Right to Cure: Tenant shall have a period of three (3) business days from the date of written notice from Landlord to Tenant within which to cure any default in the payment of Rent, Additional Rent or other sums due hereunder. Tenant shall have a period of ten (10) days from the date of written notice from Landlord to Tenant within which to cure any other default hereunder which is capable of being cured by Tenant; provided, however, that with respect to any such default which cannot be cured within such ten (10) day period the default shall not be deemed to be uncured if 17 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 Tenant commences to cure within ten (10) days and for so long as Tenant is diligently prosecuting the cure thereof. It is further agreed that after service of notice as above set forth, an additional condition to curing such default shall be payment by the Tenant of Landlord's costs and expenses including attorneys fees not to exceed Two Hundred Dollars ($200.00) for the preparation and service of such notice. 18.3 Abandonment: Abandonment means an absence from the Demised Premises of five (5) days or more while Tenant is in default or Landlord otherwise reasonably determines that Tenant has abandoned the Demised Premises and its interest under this Lease. Abandonment by Tenant shall be considered a default with no right to cure allowing Landlord to re -enter the Demised Premises under section 18.4. 18.4 Landlord's Re- entry: Upon an uncured default of this Lease by Tenant, Landlord, at its option, may enter the Demised Premises or any part thereof and expel, remove or put out Tenant or any other persons who may be thereon, together with all personal property found therein, or Landlord may terminate this Lease, or it may from time to time, without terminating this Lease and as agent of Tenant, relet the Demised Premises or any part thereof for such term or terms (which may be for a term less than or extending beyond the term hereof) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable with the right to repair, remodel and change the Demised Premises with Tenant remaining liable for any deficiency computed as provided in section 18.5. Landlord's option to relet the Demised Premises pursuant to section 18.5 shall not require It to relet the Demised Premises before leasing other vacant space in the Building. In the case of any default, re -entry and /or dispossession by summary proceedings or otherwise, all Rent and Additional Rent shall become due thereupon and be paid up to the time of such re -entry or dispossession, together with such expenses as Landlord may reasonably incur for attorneys fees, advertising expenses, brokerage fees and /or putting the Demised Premises in good order "or preparing the same for re- rental together with Interest thereon as provided in section 32.14 hereof accruing from the date of any such expenditure by Landlord. 18.5 Reletting the Demised Premises: At the option of Landlord, Rents received by Landlord from such reletting shall be applied first to the payment of any indebtedness from Tenant to Landlord other than Rent and Additional Rent due hereunder; second, to the payment of reasonable costs and expenses of such reletting and including, but not limited to, attorneys fees, advertising fees and brokerage fees and to the payment of any repairs, remodeling and changes in the Demised Premises; third, to the payment of Rent and Additional Rent due and to become due hereunder, and, if after so applying said Rents there is any deficiency in the Rent or Additional Rent to be paid by Tenant under this Lease, Tenant shall pay any deficiency to Landlord monthly on 18 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 the dates specified herein, and any payment made or suits brought to collect the amount of the deficiency for any month shall not prejudice in any way the right of Landlord to collect the deficiency for any subsequent month. Subject to Landlord's duty to mitigate damages, which duty shall be limited in the event of other vacant space in the Building during the continuance of such default, the failure of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant's liability hereunder nor shall Landlord be liable for failure to relet or, in the event of reletting, for failure to collect the Rent thereof, and in no event shall Tenant be entitled to receive any excess of net Rents collected over sums payable by Tenant to Landlord hereunder. No such re -entry or taking possession of the Demised Premises shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach and default. Should Landlord at any time terminate this Lease by reason of any default, in addition to any other remedy it may have, it may recover from Tenant the amount of Rent and Additional Rent reserved in this Lease for the balance of the Term as it may have been extended in excess of the then fair market rental value of the Demised Premises for the same period plus all court costs and reasonable attorneys fees incurred by Landlord in the collection of the same. 18.6 Nonpayment of Additional Rent: All costs and expenses which Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed Additional Rent and, in the event of nonpayment thereof, Landlord shall have all the rights and remedies herein provided for in case of non - payment of Rent. 18.7 Landlord's Lien: In addition to its statutory rights to a Landlord's lien, the Tenant does hereby grant to the Landlord a lien for the payment of any amounts of Rent due hereunder upon all of the Tenant's goods, wares, fixtures, furniture, improvements and other tangible personal property of the Tenant. 19.0 REMOVAL OF TENANT'S PROPERTY: All movable furniture and personal effects of Tenant not removed from the Demised Premises within ten (10) days after the vacation or abandonment thereof or upon the termination of this Lease for any cause whatsoever shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to Tenant and without obligation to account therefor, and Tenant shall pay Landlord for all expenses incurred in connection with the disposition of such property. 20.0 SURRENDER: Upon the expiration or earlier termination of this Lease, Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear excepted, and Tenant shall remove all of its 19 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 movable furniture and other effects. In the event Tenant fails to vacate the Demised Premises on a timely basis as required, Tenant shall be responsible to Landlord for all costs incurred by Landlord as a result of such failure, including, but not limited to, any amounts required to be paid to third parties who were to have occupied the Demised Premises. 21.0 ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the Demised Premises by Tenant shall be conclusive evidence as against Tenant that the Demised Premises were in the condition agreed upon between Landlord and Tenant, and acknowledgment of satisfactory completion of any fix -up work which Landlord has agreed in writing to perform, except as otherwise set forth herein. 22.0 SUBORDINATION: Tenant agrees that upon request of Landlord it will subordinate its rights hereunder to the lien of any mortgage, ground lease or deed of trust now or hereafter enforced against the land or building of which the Demised Premises are a part and to all events made or hereafter to be made upon the security thereof. Tenant agrees to execute such documents that may be necessary to effectuate the provisions of this article. 23.0 PAYMENTS AFTER TERMINATION: No payments of money by Tenant to Landlord after the termination of this Lease, in any manner, or after giving of any notice (other than a demand for payment of money) by Landlord to Tenant, shall reinstate, continue or extend the term of this Lease or affect any notice given to Tenant prior to the payment of such money, it being agreed that after the service of notice of the commencement of a suit or other final judgment granting Landlord possession of the Demised Premises, Landlord may receive and collect any sums of Rent due, or any other sums of money due under the terms of this Lease or otherwise exercise its rights and remedies hereunder. The payment of such sums of money, whether as Rent or otherwise, shall not waive said notice or in any manner affect any pending suit or judgment theretofore obtained. 24.0 AUTHORITIES FOR ACTION AND NOTICE: 24.1 Landlord's Representative: Except as herein otherwise provided, Landlord may act in any matter provided for herein by its building manager or any other person who shall from time to time be designated in writing. 24.2 Notices: All notices or demands required or permitted to be given to Landlord hereunder shall be in writing, and shall be deemed duly served when received, if hand delivered, or five (5) calendar days after deposited in the United States mail, with proper postage prepaid, certified or registered, return receipt requested, 20 i. \shared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 addressed to Landlord at its principal office in the Building, or at the most recent address of which Landlord has notified Tenant in writing. All notices or demands required to be given to Tenant hereunder shall be in writing, and shall be deemed duly served when received if hand delivered or within five (5) calendar days after deposited in the United States mail, with proper postage prepaid, certified or registered, return receipt requested, addressed to Tenant at its office in the Building. Either party shall have the right to designate in writing, served as above, a different address to which notice is to be mailed. 25.0 SIGNAGE! No sign, advertisement or notice shall be inscribed, painted or affixed on any part of the inside or outside of the Building unless of such color, size and style and In such place upon or in the Building, as shall be first designated by Landlord, but there shall be no obligation or duty on Landlord to allow any sign, advertisement or notice to be inscribed, ,painted or affixed on any part of the inside or outside of the Building and Landlord's approval shall be given with the understanding that Tenant shall be liable for the cost of removal and repair of any damage occasioned thereby at the end of the Lease Term. A directory in a conspicuous place, with the names of Tenant, not to exceed two names per 1,000 square feet of space contained in the Demised Premises, shall be provided by Landlord. Any necessary revision to such directory shall be made by Landlord at Tenant's expense, within a reasonable time after notice from Tenant of the change making the revision necessary. Landlord shall have the right to remove all non - permitted signs without notice to Tenant, and at the expense of Tenant. 26.0 NAME OF BUILDING PROJECT: Landlord presently refers to the Building Complex as THE TOWER and the Tower Annex. Landlord hereby reserves the right, at any time and from time to time, without notice to Tenant, to change the name of the Building Complex at Landlord's sole discretion and without any liability to Tenant for any loss, costs, or expenses occasioned thereby. 27.0 ADMITTANCE BY PASS -KEY: Landlord shall not be liable for the consequence of admitting by pass -key or refusing to admit to the Demised Premises Tenant or any of Tenant's agents, employees or other persons claiming the right of admittance. 28.0 WINDOWS- Tenant shall not allow anything to be placed on the outside window ledges of the Demised Premises. No awnings shall be attached to the outside of any windows of the Demised Premises. Only such window draperies furnished by Landlord, which shall be uniform to building standards, shall be exposed to exterior views 29.0 LIGHT AND AIR: This Lease does not grant any right of access to light, air, or view over the property, and Landlord shall not be liable for any diminution of such light, air or view by any adjacent structure. 21 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 30.0 ESTOPPEL CERTIFICATE: Tenant further agrees at any time and from time to time, on or before ten (10) days after written request by Landlord, to execute, acknowledge and deliver to Landlord an estoppel certificate certifying (to the extent it believes the same to be true) that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified, and stating the modifications), that there have been no defaults thereunder by Landlord or Tenant (or if there have been defaults, setting forth the nature thereof), and the date to which the Rent and other charges have been paid, if any, it being intended that any such statement delivered pursuant to this section may be relied upon by any prospective purchaser of all or any portion of Landlord's interest herein, or a holder of any mortgage encumbering any portion of the Building Complex. Tenant's failure to deliver such statement within such time shall be a default under this Lease and shall be conclusive upon Tenant that: (a) This Lease is in full force and effect without modification except as may be represented by Landlord; (b) There are no uncured defaults in Landlord's performance; (c) Not; more than one (1) month's Rent has been paid in advance; and (d) The amount of any security deposit paid to, and held by, Landlord. 31.0 FINAL SIX MONTHS -- LANDLORD MAY SHOW PREMISES: Landlord and Landlord's agents shall have the right at reasonable hours to exhibit the Demised Premises to prospective', purchasers and during the final six (6) months of the term hereof to prospective Tenants. 32.0 MISCELLANEOUS: 32.1 Rules and Regulations: Landlord may make and enforce regulations appropriate 'for maintenance and management of the Building Including but not limited to regulations for order, cleanliness and security, but said regulations shall not be inconsistent with the terms, covenants and conditions of this Lease. Landlord shall not be responsible to Tenant for the non - performance by any other tenant or occupant of said rules or regulations. 32.2 Transfer of Landlord's Interest: The term "Landlord ", as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the owner or owners of the Building at the time in 22 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 question, and in the event of any transfer or transfers of the title thereto, Landlord herein named (and in the case of any subsequent transfers or conveyances, the then grantor) shall be automatically released from and after the date of such transfer or conveyance of all liability in respect to the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed and relating to events occurring thereafter; provided that any funds in the hands of Landlord or the then grantor at the time of such transfer in which Tenant has an interest shall be turned over to the grantee, and any amount then due and payable to Tenant by Landlord or the then grantor under any provisions of this Lease shall be paid to Tenant. 32.3 Covenants Independent — No Setoff Right: This Lease shall be construed as though the covenants herein between Landlord and Tenant are independent and not dependent, and Tenant shall not be entitled to any set off of the Rent or other amounts owing hereunder against Landlord, if Landlord fails to perform Its obligations set forth herein. The foregoing shall in no way impair the right of Tenant to commence a separate action against Landlord for any violation by Landlord of the provisions hereof so long as notice is first given to Landlord and any holder of a mortgage or deed of trust covering the Building Complex or any portion thereof of whose address Tenant has been notified in writing and an opportunity granted to Landlord and such holder to correct such violation. 32.4 Severability: If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there shall be added as a part of the Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable, provided such addition does not increase or decrease the obligations of or derogate from the rights or powers of either Landlord or Tenant. 32.5 Captions for Convenience: The captions of each section are added as a matter of convenience only and shall be considered of no effect in the construction of any provision or provisions of this Lease. 32.6 Binding Upon Heirs and Assigns: Except as herein specifically set forth, all terms, conditions and covenants to be observed and performed by the parties hereto shall be applicable to and binding upon their respective heirs, administrators, executors and assigns. 23 is \shared \legal assistant\tower leases \city of yakima ste 880 lease doc 7/15/2013 32.7 Joint and Several Liability: If there is more than one entity or person which or who are the Tenants under this Lease, the obligations imposed upon Tenant under this Lease shall be joint and several. 32.8 No Surrender or Satisfaction: No act or thing done by Landlord or Landlord's agent during the term hereof, including, but not limited to, any agreement to accept surrender of the Demised Premises or to amend or modify this Lease, shall be deemed to be binding upon Landlord unless such act or things shall be by an officer of Landlord or a party designated in writing by Landlord as so authorized to act. The delivery of keys to Landlord, or Landlord's agent, employees or officers shall not operate as a termination of this Lease or a surrender of the Premises. No payment by Tenant, or receipt by Landlord, of a' lesser amount than the monthly Rent herein stipulated, shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any such, or payment as Rent, be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy available to Landlord. 32.9 Right to Change: Landlord shall have the right, without thereby granting an actual or constructive eviction or incurring any liability to Tenant thereof, to construct other buildings or improvements in any plaza, or other area designated by Landlord for use by tenants or to change the location, character, or make alterations of, or additions to, any of said plazas, or other Building Complex areas. 32.10 Representations by Landlord: Tenant acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties except such as are expressed in this Lease. 32.11 Time of Essence: Time is of the essence hereof. 32.12 Authority to Act: Tenant represents to Landlord that the party executing this Lease is authorized to do so by requisite action of the Tenants Board of Director or members, or partners, as the case may be, and agrees upon request to deliver to Landlord a resolution or similar document to that effect. 32.13 Landlord's Liability: Anything in this Lease to the contrary notwithstanding, covenants, undertakings and agreements herein made on the part of the Landlord are made and intended not 'as personal covenants, undertakings and agreements for the purpose of binding Landlord personally or the assets of Landlord, except Landlord's interest in the Demised Premises and Building, but are made and intended for the purpose of binding only the Landlord's interest in the Demised Premises 24 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 and Building as the same from time to time be encumbered No personal liability or personal responsibility is assumed by nor shall at any time be asserted or enforceable against Landlord, the venturers comprising Landlord or their respective heirs, legal representatives, successors or assigns on account of the Lease or on account of any covenant, undertaking or agreement of Landlord in this Lease contained. 32.14 Overdue Payments — Administrative Handling Charge: Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent, Additional Rent or other sums payable by Tenant under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage or deed of trust secured by the Building. Accordingly, in the event that any installment of Rent, Additional Rent or other sums payable by Tenant under this Lease shall not be received by Landlord or Landlord's designee within ten (10) days of the due date thereof, Tenant shall pay to Landlord an administrative handling charge of five percent (5 %) of the amount thereof for each late payment. Acceptance of such administrative handling charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amounts nor prevent Landlord from exercising any of the other rights and remedies granted in this Lease. Any Rent, Additional Rent or other sums payable by Tenant under this Lease which shall not be paid upon the due date thereof shall bear interest at a rate equal to three (3) percentage points above the prime rate of interest published or announced from time to time by Key Bank of Washington, or its successor or, in the absence of an established prime rate, five (5) percentage points over that bank's rate of one (1) year certificates of deposit but not in excess of the highest lawful rate permitted under applicable laws calculated from the original due date thereof to the date of payment. 32.15 Force Maieure: Except for the payment of Rent, Additional Rent or other sums payable by Tenant, time periods for Tenant's or Landlord's performance under any provisions of this Lease shall be extended day for day for periods of time during which Tenant's or Landlord's performance is prevented due to circumstances beyond Tenant's or Landlord's reasonable control. 33.0 GOVERNING LAW; ATTORNEYS FEES; VENUE. This Lease Agreement shall be construed in accordance with the laws of the State of Washington. In the event of any action arising hereunder, the prevailing party shall be granted its reasonable attorneys fees and court costs. Venue for any such action shall be in the County of Yakima. 34.0 ENTIRE AGREEMENT: This Lease, together with the exhibits attached 25 iAshared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 hereto, contains the entire agreement of the parties and may not be amended or modified in any manner except by an Instrument in writing signed by both parties. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and year first above written. THE TOWER, LLC By: JEM Development Real Estate, Inc. General Manager n, Joseph R Morrier, Sr , President LANDLORD STATE OF WASHINGTON) ) ss. LANDLORD'S COUNTY OF YAKIMA ) ACKNOWLEDGMENT TENANT I certify that I know or have satisfactory evidence that Joseph R. Morrier, Sr. signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the President of JEM DEVELOPMENT REAL ESTATE, INC. (as the General Manager of THE TOWER, LLC) to be the free and voluntary act of JEM DEVELOPMENT REAL ESTATE, INC. in its capacity as General Manager of THE TOWER, LLC for the uses and purposes mentioned in the instrument. DATED: ��,• � � sTEpy�,, (Stamp or qa' • My Comm. Expires March 21, 2014 : Z = WASN���,. STATE OF WASHINGTON) ) ss " 4 ral/ 6-ry -, '*-v �-- 9 atary PutYlicK Public' and for the State of shington, residing at My appointment expires: 2 TENANT'S 26 iAshared \legal assistant \tower leases \city of yakima ste 880 lease.doc 7/15/2013 CITY CONTRAC r NO 11-3 RESOLUTION NO? COUNTY OF YAKIMA ACKNOWLEDGEMENT I certify that I know or have satisfactory evidence that 'I O'QO(,CrA�e signed this instrument and acknowledged it to be (his /her) free and voluntary act for the uses and purposes mentioned in the instrument. DATED- \\01i (Stamp s.•A_ MY �m =_ oet°ber comm. F fires ; m = 2014 p gLIC 0 Lenc Notary Publi in and for the St e of Washington, residing at fv-ck—) My appointment expires: 'A 0, -( 27 is \shared \legal assistant \tower leases \city of yakima ste 880 lease doc 7/15/2013 EXHIBIT "A" q N 0 N O L �x; A p a f1CHM f100R THE TOWER RIG 0 m l A<i a�c.rrs xcswvro a vAV, ar a n s .dPx er .�o.° ° -C. °a em 0 {{ 4 FOR *2wsu,rTxa rN ANr rowu orr e. .wr MLY/S CICCnv,Gt OA u[C,wvrUt OC VCL OP MENT COMPANY JEM DEVELOPMENT COMPANY YAKIM4 WA ov er A.r wow.Mnw. srw.cL ,.a —wr E ccC .on .. a K—nm BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. '�—L For Meeting of: 8/20/2013 ITEM TITLE: Resolution concerning Administration; authorizing the City Manager to execute a Lease Agreement between The Tower, LLC and the City of Yakima to provide office space to house the Capitol Theatre staff. SUBMITTED BY: Jeff Cutter, City Attorney SUMMARY EXPLANATION: The City leases space from The Tower, LLC in the downtown Tower building to provide office space for the Capitol Theatre staff members. Due to reductions in staff support for the Capitol Theatre and in an effort to reduce Theatre operating overhead, the City and The Tower, LLC have agreed upon a reduced lease space within the Tower building that will adequately house the Capitol Theatre staff and also reduce the cost of leased space from $37,000 annually to $21,888 annually. The new Lease will replace the previous agreement and will allow the Theatre staff to remain in the premises they previously occupied, but with a reduction in the leased area and in the monthly rent. Resolution: X Other (Specify): Contract: Start Date: Item Budgeted: NA Funding Source /Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: Ordinance: Contract Term: End Date: Amount: Public Trust and Accountability City Manager 4:=IjftT &O.J, RECOMMENDATION: Adopt Resolution. ATTACHMENTS: mom 0 Resolution- The Tower Capitol Theatre Lease Agreement.docx Description- Resolution-The Tower & Capitol Theatre Lease Agreement contract