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HomeMy WebLinkAboutR-2004-097 Yakima Mall Shopping Center Corporation Lease (re: Capitol Theatre workspace)RESOLUTION NO. R 2004- 97 A RESOLUTION authorizing and directing the City Manager to execute a lease between the City of Yakima and the Yakima Mall Shopping Center Corporation for temporary Capitol Theatre workspace. WHEREAS, the City of Yakima is engaged in renovations to the Capitol Theatre; and WHEREAS, the City of - Yakima desires to provide alternative workspace to the Capitol Theatre Committee while such renovations are ongoing; and WHEREAS, the Yakima Mall Shopping Center Corporation has suitable workspace in the Tower building; and WHEREAS, the Yakima Mall Shopping Center Corporation is willing to lease such space in accordance with the terms and conditions of the attached lease; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into the attached Lease with the Yakima Mall Shopping Center Corporation for temporary workspace, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "The Tower Tenant Lease to City of Yakima Tenant" with the Yakima Mall Shopping Center Corporation for temporary Capitol Theatre workspace. ADOPTED BY THE CITY COUNCIL this 6th day of July, 2004. ATTEST: Paul P. George, Mayor ahs-,... City Clerk THE TOWER TENANT LEASE TO CITY OF YAKIMA TENANT July /,7--' , 2004 LEASE AGREEMENT 1.0 BASIC LEASE PROVISIONS 1.1 LANDLORD: YAKIMA MALL SHOPPING CENTER CORPORATION ADDRESS: THE TOWER 402 E YAKIMA AVENUE SUITE 1400 YAKIMA WA 98901 Phone: (509) 248-4040 1.2 TENANT: CITY OF YAKIMA (The Capitol Theatre Office) ADDRESS: 402 E YAKIMA AVENUE SUITE 110 YAKIMA WA 98901 PHONE NUMBER: (509) TENANT'S TRADE NAME: The Capitol Theatre 1.3 PREMISES: The Tower, Yakima, Washington, Suite 110 and 2.0 consisting of approximately 2825 square feet. 1.4 PERMITTED USES: General Office 5.0 1.5 LEASE TERM: One Year, commencing August 1, 2004 3.0 and expiring July 31, 2005. 1.6 COMMENCEMENT DATE: August 1, 2004 3.0 1.7 INITIAL TERM TERMINATION DATE: July 31, 2005 3.0 1.8 BASE RENT: Eighteen Hundred and No/100ths Dollars ($1800.00) 4.1 per month payable monthly in advance on or before the first day of each calendar month. (1) \SHARED\Legal Assis_ar_\Tcwe_ Leases\CiCy c° YakLma ?g_ dcc 06/22/04 1.9 EARLY TERMINATION: Notwithstanding that this Lease is for a term of one year, it is expressly understood and agreed that either party may terminate this Lease as of the last day of any calendar month by serving written notice on the other party, in the manner provided by Section 33.0 of this Lease, not Tess than 30 days prior to the effective date of termination. 1.10 OPTION TO EXTEND: The Tenant is hereby granted an option to extend this Lease for another year, i.e. from August 1, 2005 to July 31, 2006 on all the same terms and conditions of this Lease, specifically including, but not by way of limitation, Section 1.8 (Rent) and Section 1.9 (Early Termination). (ii) I:\SHARED\Legal Ass:s:ant\ 'owe_ Leases\C '_i of '%akima 06/22/04 THE TOWER YAKIMA, WASHINGTON OFFICE BUILDING LEASE THIS LEASE is made this /" day of July, 2004 between YAKIMA MALL SHOPPING CENTER CORPORATION, a Washington corporation, ("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: 2.1 Landlord hereby leases to Tenant 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 and 8, Block 91, TOWN OF NORTH YAKIMA, now YAKIMA, as 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. The Building and real property on which the same is situated, 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 I:\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 2.2 Right to Relocate: Landlord shall have the right at any time during the term of this Lease, upon giving Tenant thirty (30) days notice in writing, to provide and furnish Tenant with space elsewhere in the Building of approximately the same size and area as the herein demised space. Should Tenant refuse to relocate to such new space at the end of the 30 -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: This Lease is for an initial term of twelve (12) months commencing on August 1, 2004 and expiring on July 31, 2005. Should Tenant, with the Landlord's acquiescence, hold over after the expiration of said initial term, Tenant shall become a tenant from month-to-month only upon each and all of the terms herein provided as may be applicable to such 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 in THE TOWER, 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 i above) Rent for a part of the month shall be prorated in proportion to the number of days in said month. 5.0 CHARACTER OF OCCUPANCY: 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 2 I \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 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 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 J 1 \SHARED\Legal Assistant`Tower Leases`,City of Yakima Lease doc 06/24/04 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 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 or 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. 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 - 4 I:\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc 06/24/04 (i) At Landlord's option, to terminate this Lease immediately; and (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 Utility Rates and Payments: Landlord shall pay the cost of electricity, water, sewer and garbage utility service to the Premises, at no additional cost to the Tenant. Landlord will not provide any telephone or telecommunications services or janitorial services to the Premises. 6.1.1 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 beyond Landlord's reasonable control. 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. 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. 8.0 MAINTENANCE AND REPAIRS 8.1 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. 8.1.1 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, 5 I.\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 alterations or improvements cause any 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, 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. 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. Landlord shall have the right to fix the position of any article of such weight in the Demised Premises. 9.0 ALTERATIONS AND ADDITIONS: 9.1 Tenant shall make no alterations, additions or improvements to the Demised Premises or any part thereof 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, and requiring the Tenant to use the contractor designated by Landlord. Those requirements may include without limitation the manner in which the work is done, and the times during which it is to be accomplished. Tenant further agrees not to connect with Building systems, including electric wires, water pipes, fire safety and mechanical systems, any apparatus, machinery or device without the prior written consent of Landlord 6 I \SHARED\Legal Assistant\Tower Leases\Cit} of Yakima Lease.doc 06/24/04 9.2 All alterations and additions to the Demised Premises (whether performed with or without Landlord's consent as provided herein), shall be deemed a part of the real estate and the property of Landlord and shall remain upon and be surrendered with the Demised Premises as a part thereof without molestation, disturbance or injury at the end of said term, whether by lapse of time or otherwise, unless Landlord, by notice given to Tenant no later than fifteen (15) days prior to the end of the term, shall elect to remove or to have Tenant remove all or any of such alterations or additions (excluding standard Tenant finish work and non-movable office walls), and in such event, tenant shall promptly remove, at its sole cost and expense, such alterations and additions and restore the Demised Premises to the condition in which the premises were prior to the making of the same, reasonable wear and tear excepted. Any such removal, whether required or permitted by Landlord, shall be at Tenant's sole cost and expense, and Tenant shall restore the Demised Premises to the condition in which the Demised Premises were prior to the making of the same, reasonable wear and tear excepted. All movable partitions, machines and equipment which are installed in the Demised Premises by or for the account of Tenant, without expense to Landlord, and can be removed without structural damage to or permanent defacement of the Building or the Demised Premises, and all furniture, furnishings and other articles of personal property owned by Tenant and located in the Demised Premises (all of which are herein called "Tenant's Property"), shall be and remain the property of Tenant and may be removed by it at any time during the term of this Lease. However; if any of Tenant's Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Building or the Demised Premises resulting from such removal All additions or improvements which are to be surrendered with the Demised Premises shall be surrendered with the Demised Premises, as a part thereof, at the end of the term or the earlier termination of this Lease. 9.3 If Landlord authorizes persons requested by Tenant to perform any alterations, repairs, modifications or additions to the Demised Premises, then prior to the commencement of any such work, Tenant shall on request of Landlord deliver to Landlord certificates issued by insurance companies qualified to do business in the State of Washington evidencing that Workmen's Compensation, public liability insurance and property damage insurance, all in amounts, with companies and on forms reasonably satisfactory to Landlord, are in force and effect and maintained by all such contractors and subcontractors engaged by Tenant to perform such work All such policies shall name Landlord as an additional insured Each such certificate shall provide that the same may not be canceled or modified without thirty (30) days' prior written notice to Landlord. 9.4 Tenant, at its sole cost and expense, shall cause any permitted alterations, decorations, installations, additions or improvements in or about the Demised Premises to be performed in compliance with all applicable requirements of insurance bodies having jurisdiction, and in such manner as not to interfere with. delay, or impose any additional expense upon Landlord in the construction. maintenance or operation of the Building and so as to maintain harmonious labor relations in the Buliding 1 'SHARED`,.Legal Assistant\Tower Leases\City of YaKima Lease doc 06/24;04 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 alterations, 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. 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 MECHANIC'S 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 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 Should any such liens be filed or recorded against the Demised Premises with respect to work done or for materials supplied to or on behalf of Tenant or any action affecting the title thereto be commenced, Tenant shall cause such liens to be removed of record within thirty (30) days after notice from Landlord. If Tenant desires to contest any such claim of lien, it_ shall furnish Landlord with adequate security of at least 150 percent of the amount of the claim, plus estimated costs and Interest, and If a final judgment establishing the validity or existence of any lien for any amount is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in default in paying any charge for which such a mechanic's lien or suit to foreclose such a lien has been recorded or filed and shall not have given Landlord security as aforesaid, Landlord may (but without being required to do so) pay such lien or claim and any costs, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be immediately due from Tenant to Landlord. 12.0 DAMAGE TO PROPERTY, INJURY TO PERSONS. 12.1 Tenant, as a material part of the consideration to be rendered to landlord under this Lease, hereby waives all claims of liability Tenant or Tenant's successors or assigns may have against Landlord, and Tenant hereby Indemnifies and agrees to hold Landlord harmless from and to defend Landlord against any and all claims 8 i \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc C6/24/04 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, 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. 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 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 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. 12.4 In case any action or proceeding is brought against Landlord or Tenant by reason of any obligation on their respective parts to be performed under the terms of this Lease, or arising from any of their acts or negligence of them, respectively, or of their agents or employees, such party, upon notice from the other party shall defend the same at its expense by counsel reasonably satisfactory to the party giving such notice 9 1 \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/241C4 13.0 INSURANCE: 13.1 Tenant shall procure and keep in effect public liability and property damage insurance, naming the Landlord as an additional insured in the sum of One Million Dollars ($1,000,000) for damages resulting to one person, and Two Million Dollars ($2,000,000) for damages resulting from one casualty, and Two Million Dollars ($2,000,000) for damage to property resulting from any one occurrence, and shall deliver said policies or certificates to Landlord prior to initial occupancy and continuously maintain such coverage thereafter. 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 shall be paid to Landlord upon receipt by Tenant of bills therefor. 13.2 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 insurable value thereof. 13.3 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. 13.4 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. 13.5 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 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 13.6 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 10 I \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc C6i24iC4 14.0 DAMAGE OR DESTRUCTION TO PREMISES: If the Demised Premises are materially damaged or destroyed by fire or other casualty, either party may elect to terminate the Lease effective as of the date of said Toss or damage. 15.0 There is no Section 15.0 of this Lease. 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. 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. 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. 11 I.\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc 06/24/04 18.0 DEFAULTS, REMEDIES, DAMAGES, ADMINISTRATIVE HANDLING CHARGES: 18.1 It is agreed that the full and prompt performance of the terms and conditions of this Lease are of the essence. In the event the Tenant shall be in default in the payment of rent for more than three (3) days following notice of default or in default of any other term, covenant or condition of this Lease for more than ten (10) days following notice of default, this Lease, at the option of Landlord, shall be forfeited, and in such event it is expressly agreed that Landlord may enforce such forfeiture pursuant to the Unlawful Detainer Statutes of the State of Washington and Tenant hereby waives all defenses as to the non -applicability of such statues. It is further agreed that after service of notice as above set forth, an additional condition to avoid forfeiture shall be payment by the Tenant of Landlord's costs and expenses including attorneys fees not to exceed One Hundred Twenty -Five dollars ($125.00) for the preparation and service of such notice. 18.2 No failure by Landlord to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach of such agreement, term, covenant or condition. No agreement, term, covenant or condition hereof to be performed or complied with by Tenant, and no breach thereof, shall be waived, altered or modified except by written instrument executed by Landlord. No waiver of any breach shall affect or alter this Lease, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. Notwithstanding any unilateral termination of this Lease, this Lease shall continue in force and effect as to any provisions hereof which require observance or performance of Landlord or Tenant subsequent to termination. 19.0 POSSESSION. In the event of the inability of Landlord to deliver possession of the Demised Premises or any portion thereof at the time of the commencement of the term of this Lease, neither Landlord nor Landlord's agent shall be liable for any damage caused thereby, nor shall this Lease thereby become void or voidable, nor shall the term herein specified be extended in any way, but in such event, Tenant shall not be liable for any rent until such time as Landlord can deliver possession. If the Tenant shall take possession of the Demised Premises prior to the commencement date of this Lease, Landlord and Tenant agree to be bound by all of the provisions and obligations hereunder during such prior period, including payment of rent as set forth herein. 20.0 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 12 I:\SHARED\Legal Ass stant\Tower Leases\City of Yakima Lease doc 06/24/04 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. 21.0 HOLDING OVER: Should Tenant, with Landlord's written consent, hold over after the termination of this Lease, Tenant shall become a tenant from month to month only upon each and all of the terms herein provided as may be applicable to such month to month tenancy and any such holding over shall not constitute an extension of this Lease. During such holding over, Tenant shall pay rent equal to one hundred twenty percent (120%) of the last monthly rental rate and the other monetary charges as provided herein. Such tenancy shall continue until terminated by Landlord or Tenant by a written notice of its intention to terminate such tenancy given at least twenty (20) days prior to the date of termination of such monthly tenancy. 22.0 SURRENDER AND NOTICE: 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 movable furniture and other effects and such alterations, additions and improvements as Landlord shall require Tenant to remove pursuant to section 9.2. 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. 23.0 There is no Section 23 of this Lease. 24.0 There is no Section 24 of this Lease. 25.0 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 26.0 AUTHORITIES FOR ACTION AND NOTICE 26.1 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 13 1 \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 time be designated in writing. 26.2 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, 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 principal office in the Building. Either party shall have the right to designate in writing served as above provided a different address to which notice is to be mailed. 27.0 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 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. 28.0 NAME OF BUILDING PROJECT: Landlord presently refers to the Building Complex as THE TOWER. 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. 29.0 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 30.0 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 prospective tenants. 31.0 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 14 I \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.dcc 06,_4;04 32.0 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. 33.0 NOTICES: All notices in this Lease provided to be given by either party hereto to the other shall be deemed to have been given, when made in writing and personally delivered to the offices of the Landlord at the address below or to the office of the City Manager of the Tenant, at the address below, or when deposited in the United States Mails, Certified or Registered Mail, Return Receipt Requested, postage prepaid, and addressed as follows: TO LANDLORD: J. R. MORRIER, PRESIDENT YAKIMA MALL SHOPPING CENTER CORPORATION THE TOWER 402 E YAKIMA AVE STE 1400 YAKIMA WA 98901 TO TENANT: CITY OF YAKIMA 129 N. 2nd STREET YAKIMA, WA 98901 The address to which any notice, demand or other writing may be given, made or sent to either party may be changed by written notice given by such party to the other as above provided 34.0 MISCELLANEOUS: 34.1 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 34.2 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 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 15 I'\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc 06/24/04 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. 34.3 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. 34.4 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 provisions 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. 34.5 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. 34.6 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. 34.7 There is no Section 34.7 of this Lease 34.8 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 16 I \SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 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. 34.9 Landlord shall have the right 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 areas. 34.10 Tenant acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties except such as are expressed in this Lease. 34.11 Time is of the essence hereof. 34.12 Tenant represents to Landlord that the party executing this Lease is authorized to do so by requisite action of the Board of Directors, or partners, as the case may be, and agree upon request to deliver to each other a resolution or similar document to that effect. 35.0 GOVERNING LAW; ATTORNEYS'S 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 attorney's fees and court costs. Venue for any such action shall be in the County of Yakima. 36.0 ENTIRE AGREEMENT: This Lease, together with the exhibits attached 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. YAKIMA MALL SHOPPING CENTER CORPORATION B -Joseph R. Morrier Its President 0�---- By LANDLORD CITY OF YAKIMA 17 I'\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease doc 06/24/04 ' 6 enn Rice, Acting Its City Manager TENANT a� Y I WTMct MQ ,2f /l V- 79 unmegrorta if- Rao 9-97 STATE OF WASHINGTON) ) ss. COUNTY OF YAKIMA ) LANDLORD'S ACKNOWLEDGMENT I certify that I know or have satisfactory evidence that JOSEPH R. MORRIER signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the President of YAKIMA MALL SHOPPING CENTER CORPORATION to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED:94/„Eit /4, ao64 as1E D R4' o�\gS%ONF�A��® NOTARY cn , PUBLIC 0, OpWAstk STATE OF WASHINGTON) ) ss. COUNTY OF YAKIMA ) Notary Public in ancYfor the State of Washington, residing at Ogioato !.C/!'7 My appointment expires: jet agar TENANT'S ACKNOWLEDGMENT I certify that I know or have satisfactory evidence that g/e,1r A21 c6 signed this instrument, on oath stated that he/she was authorized to execute the instrument, and acknowledged it as the A-c-rincj C.r Pv"16,.l of CITY OF YAKIMA to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: 7 - Nota ryf Public in and for the State of , Washington, residing at My appointment expires: -i67--e� 18 I:\SHARED\Legal Assistant\Tower Leases\City of Yakima Lease.doc 06/24/04 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. J For Meeting of: July 6, 2004 ITEM TITLE: A resolution authorizing the execution of a lease with the Yakima Mall Shopping Center Corporation for temporary Capitol Theatre workspace. SUBMITTED BY: Michael Morales, Economic and Community Affairs Specialist CONTACT PERSON/TELEPHONE: Michael Morales, 575-3533 SUMMARY EXPLANATION: The attached resolution authorizes and directs the City Manager to execute a lease with the Yakima Mall Shopping Center Corporation for temporary workspace for the Capitol Theatre Committee. This workspace is necessary while the Theatre is renovated. Resolution X Ordinance _ Other (Specify) Contract X Mail to (name and address): Funding Source: CTED Grant APPROVED FOR SUBMITTAL(.... ---—g-, City Manager STAFF RECOMMENDATION: Adopt the resolution. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2004-97.