HomeMy WebLinkAbout1997-112 Elevator Lease - OSF
GRANT OF EASEMENT FOR ELEVATOR
AND
ELEVATOR LEASE
Agreement made this d I ~ day of October 1997, between the Oregon
Shakespeare Festival Association, an Oregon non-profit corporation ("OSF"), and the
City of Ashland, Oregon ("City").
017./,
~(~
Recitals:
A. OSF is renovating the Pioneer Building located at 38-42 East Main Street, Ashland.
The renovation includes the installation of a passenger elevator on city property to
provide employee and public access to the upper floors of the Pioneer Building ("the
elevator") .
B. City desires use of the elevator to provide employee and public access to the upper
floors of City Hall located at 20 East Main Street, Ashland.
City and OSF agree:
1. Grant of Easement to OSF. City grants to OSF a perpetual easement for the
construction, installation, use, operation, inspection, repair and maintenance of a
passenger elevator described in paragraph 2 of this agreement on the property
described on the attached Exhibit A. This grant of easement shall be binding upon,
and shall inure to the benefit of, City and its successors and assigns and OSF and its
successors and assigns.
2. Construction of elevator. OSF shall construct or cause to be constructed an
elevator (described as Base Bid, Part B in the construction documents for the
improvements to the Pioneer Building) with reasonable diligence according to plans
and specifications approved by City. The elevator shall provide access to the upper
floors to City Hall at such locations reasonably determined by City. Details of the
elevator and any other improvements necessary to be constructed in conjunction with
the elevator to provide access to City Hall are set forth in the attached Exhibit B. This
elevator and other improvements are further referred to in this lease as lithe elevator
work" or "elevator. II The plans and specifications will be reviewed and agreed upon by
City and will be incorporated and made a part of this agreement. The elevator work
shall be constructed under the direction of OSF and shall be erected in accordance
with all state and local building laws, rules, and regulations.
2.1. The design and specifications for the elevator work shall be as reasonably
requested by City and as reasonably agreed to by OSF. Upon receipt of all
responsive bids, OSF shall consult with City and select the bidder mutually
advantageous to both parties.
2.1 .1. The parties estimate that the cost of construction for the elevator
work will not exceed $212,000 plus mutually agreed upon change orders.
PAGE 1-ELEVATOR LEASE (p:agree\shake'e3.lse)
Except for change orders which shall be paid as specifically provided in the
next sentence, City shall pay to OSF an amount equal to 35 percent of the cost
of the elevator work and OSF shall pay 65 percent of such cost. The cost for
change orders shall be borne by the party benefitted by the change as mutually
agreed by City and OSF. Payment by City of any amounts described in this
paragraph shall be as provided in paragraph 4.1. For purposes of this
agreement, the cost of construction for the elevator work shall include the
following items:
2.1.1.1. All sums paid by OSF to the contractor pursuant to the
construction contract for the elevator work, including any sums paid as a result
of change orders and claims made by the contractor.
2.1.1.2. The costs of any permits, governmental fees, licenses,
and inspections necessary for the proper completion of the elevator and other
improvements covered by the plans and specifications.
2.1.1.3. Any other costs associated with the construction of the
elevator and other improvements covered by the above mentioned plans and
specifications, including materials, fees, labor, supervision, litigation expenses,
claims, administration and all other necessary and incidental expenses.
2.1.2. During the course of construction it may be necessary to issue
change orders. OSF shall have the right to negotiate change orders for the
following items:
2.1.2.1. Changes which are necessary to meet requirements
prescribed by State and local regulatory agencies in their normal course of
implementing rules and regulations.
2.1.2.2. Changes necessary to correct defects in plans,
specifications, shop drawings, submittals, materials and workmanship that affect
the integrity of the building and other improvements described in the above
referenced plans and specifications.
2.1.2.3. Changes which involve concealed conditions as defined in
the general conditions of the construction contract.
2.1.2.4. Changes which are necessary to allow completion of the
construction contract within the time specified in the construction contract.
elevator.
2.1.2.5. Changes which are necessary to facilitate City's use of the
Provided, however, OSF shall not approve change orders for the above
referenced items without first obtaining the prior approval of the authorized
representative of City, which approval shall not be unreasonably withheld. City
PAGE 2-ELEVATOR LEASE (p:agree\shakele3.1sel
shall designate one or more persons who shall be authorized to approve
change orders on behalf of City. City shall notify OSF in writing of the identity of
the persons so designated to represent City. At all times during the construction
process at least one representative of City shall be available to review change
orders without unreasonable delay.
City shall have the right to contest by appropriate proceedings diligently
conducted in good faith, in the name of the City, or OSF or both, without costs
or expense to OSF, the validity of any claims for additional costs or claims for
extension of time made by the contractor in accordance with the construction
contract.
3. Term. This lease shall be effective between the parties unless terminated as
provided in paragraph 12.
4. Initial and Rental Payments to OSF:
4.1. Initial payment. City shall pay to OSF the sum described in paragraph 2.1.1
as follows: As OSF is billed by the contractor for progress on construction of the
elevator, City shall pay to OSF 35% of the amount of the progress payment specifically
connected with contractor's elevator work. City shall make such payment within 30
days of the receipt of the statement. City's payments under this paragraph shall not
exceed 35% of the sum specified in paragraph 2.1.1 unless City has approved change
orders causing this sum to increase.
4.2. Rent payment. City shall pay OSF each year on or before the 15th day of
February during the lease term the rental amount as determined in paragraph 4.3.
4.3. Rent Amount. Except as provided in paragraph 4.3.1, City shall pay rent to
OSF annually on or before February 15 of each year as follows:
4.3.1. When the elevator has been put into operation, the parties shall
estimate the operation, insurance, service agreement, repair and
maintenance costs from such date until the following February. Within 30
days of the agreement of the parties as to the estimate, the City shall pay
50% of such amount to OSF as rent under this agreement.
4.3.2. Each January thereafter the parties shall meet and estimate the
operation, insurance, repair and maintenance costs for the next twelve
months and City shall pay 50% of such estimate to OSF as rent under
this agreement. In any January if the parties determine that the actual
costs for repair and maintenance during that January and the previous
11 months is less than the actual amount paid by the City then the
difference shall be credited to City's next annual rent payment. If the
amount is more, City shall add the difference to the next annual rent
payment.
PAGE 3-ELEVATOR LEASE (p:agree\shakele3.lse)
4.4. Rent Representations. Pursuant to ORS 307.112 and 307.166, the parties
expressly agree that the rent payable by the City under this lease has been
established to reflect the savings below market rent resulting from any tax-exemption
OSF is entitled to and that the rent charged does not exceed the cost of repairs,
maintenance, amortization and upkeep.
5. Use. OSF shall operate the elevator and shall supply elevator service to City, its
officers, employees, invitees and the public 24 hours a day, seven days a week as
determined by City. Access by City to the elevator under this agreement shall be
controlled by City and City shall have the right to limit or expand access to the elevator
at such times and days as City shall determine. OSF shall not be liable for any failure
to supply service, occasioned by accident or other cause beyond OSF's control.
6. Utilities. OSF shall initiate, contract for, and obtain, in its name, all utility services
required for operation and maintenance of the elevator, including gas, electricity,
telephone, water, and sewer connections and services, and OSF shall pay all charges
for those services as they become due. If OSF fails to pay the charges, City may elect
to pay them and the charges will then be subtracted from the annual rental payment
next due.
7. Ownership of Improvements. The elevator work shall be the property of OSF. The
parties acknowledge that the elevator work is located on property owned by the City
for which no rental will be required.
8. Maintenance. OSF shall furnish or shall cause to be furnished complete
maintenance and repair on the elevator requiring those who service, maintain and
repair the elevator to use trained and qualified personnel. Such personnel shall be
qualified to keep the elevator properly adjusted and will use all reasonable care to
maintain the elevator in proper and safe operating condition.
If OSF fails to make such repairs or replacements, City shall have the right to make
such repairs or replacements and subtract the charges for such from the annual rental
payment next due.
9. Damage or Destruction.
9.1. Fire Insurance. OSF shall obtain and keep the elevator insured at OSF's
expense against fire and other risk covered by a standard fire insurance policy with an
endorsement for extended coverage including vandalism and malicious mischief. The
amount of insurance shall not be less than 100% of the replacement value of the
elevator and improvements.
9.2. Subrogation of Claims. Neither party shall be liable to the other (or the
other's successors or assigns) 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 and in the event of insured loss neither party's insurance company shall
have a subrogated claim against the other.
PAGE 4-ELEVATOR LEASE (p:agree\shake'e3.1sel
9.3. Proceeds and Repairs. If the improvements are damaged or destroyed by
fire or any of the risks enumerated in the insurance policy required by this paragraph,
the proceeds from the insurance shall be applied to repair or replace the elevator.
Repairs shall be accomplished by OSF with all reasonable dispatch subject to
interruptions and delays from labor disputes and matters beyond the control of OSF.
Nothing contained in this provision is intended to excuse OSF's duty to repair
pursuant to paragraph 8.
10. Indemnification and Insurance.
10.1 Liability from use. City shall be solely responsible for any loss or injury
caused to third parties arising from City's acts or omissions under this agreement, and
OSF shall be solely responsible for any loss or injury caused to third parties arising
from OSF's acts or omissions under this agreement. City shall hold harmless and
indemnify OSF with respect to any claim, litigation or liability arising from City's own
acts or omissions under this agreement and OSF shall hold harmless and indemnify
City with respect to any claim, litigation or liability arising from OSF's own acts or
omissions under this agreement.
10.2 Liability Insurance.
10.2.1. City shall, at its own expense, at all times during the term of this
lease, maintain in force a comprehensive general liability policy including
coverage for contractual liability for obligations assumed under this lease. The
liability under each policy shall be a minimum of $500,000 per occurrence
(combined single limit for bodily injury and property damage claims) or
$500,000 per occurrence for bodily injury and $100,000 per occurrence for
property damage.
OSF shall, at its own expense, at all times during the term of this lease,
maintain in force a comprehensive general liability policy including coverage for
contractual liability for obligations assumed under this lease. The liability under
each policy shall be a minimum of $500,000 per occurrence (combined single
limit for bodily injury and property damage claims) or $500,000 per occurrence
for bodily injury and $100,000 per occurrence for property damage.
10.2.2. Certificates of insurance acceptable to OSF shall be filed with
OSF prior to the use of the elevator by City under this lease. Certificates of
insurance acceptable to City shall be filed with City prior to the use of the
elevator by OSF. These certificates shall contain provision that coverages
afforded under the policies can not be cancelled and restrictive modifications
cannot be made until at least 30 days prior written notice has been given to
OSF. A certificate which states merely that the issuing company "will endeavor
to mail" written notice is unacceptable.
PAGE 5-ELEVATOR LEASE (p:agree\shakele3.1sel
10.2.3. OSF shall be added as an additional named insured to the City's
policy regarding claims arising under this lease and in like manner the City of
Ashland shall be added as an additional named insured to OSF's policy.
10.2.4. Should City fail to keep in effect and pay for insurance as
required by this paragraph, OSF may do so, in which event the insurance
premiums paid by OSF shall become due and payable forthwith and the failure
of City to pay the same on demand shall constitute a breach of this lease.
Should OSF fail to keep in effect and pay for insurance as required by
this paragraph, City may do so, in which event the insurance premiums paid by
City shall become due and payable forthwith and the failure of OSF to pay the
same on demand shall constitute a breach of this lease.
11. Default. For any and all purposes arising pursuant to this lease, the following
shall constitute an event of default:
11.1. Rent Delinquency. Failure of City to pay any rent or other charge within 15
days after written notice that it is due.
11.2. Noncompliance. Failure of either party to comply with any term or
condition or fulfill any obligation of this lease (other than the payment of rent or other
charges within fifteen days) shall constitute a default 30 days after written notice by the
party claiming non-compliance specifying the nature of the non-compliance with
reasonable particularity. If the non-compliance is of such a nature that it cannot be
completely remedied within the thirty-day period, this provision shall be complied with if
the non-complying party begins correction of the non-compliance within the thirty-day
period and thereafter proceeds with reasonable diligence and in good faith to effect
the remedy as soon as practicable.
11.3. Liens. Failure to remove any lien or encumbrance placed upon the
elevator suffered by or through the act of either party shall constitute a default 30 days
after written notice thereof by the party asserting violation of this paragraph to the non-
complying party, except that either party may in good faith object, on behalf of the
other party or itself, to the validity or amount of any lien and may contest the validity or
amount of the lien.
12. Remedies.
12.1. If any default by City shall continue substantially uncured following notice
of default as required under this lease or if no notice is required and City is in default,
OSF shall have the following remedy in addition to other equitable or legal rights and
remedies: OSF may terminate the lease on giving written notice of termination to City.
Without such notice, re-entry will not terminate the lease. On termination OSF may
recover from City all damages proximately resulting from the breach, including the cost
of recovering the premises and the worth of the balance of this lease over the
PAGE 6-ELEVATOR LEASE (p;agree\shakele3.1sel
reasonable rental value of the premises for the remainder of the lease term, which sum
shall be immediately due OSF from City.
12.2. If any default by OSF shall continue substantially uncured following notice
of default as required under this lease or if no notice is required and OSF is in default,
City shall have the following remedies in addition to other equitable or legal rights and
remedies: City may require specific performance of OSF of its duties and obligations
under this lease or City may terminate the lease on giving written notice of termination
to OSF. On termination City may recover from OSF all damages proximately resulting
from the breach.
13. Successor Interests. All the covenants, agreements, conditions and terms
contained in this lease shall be binding upon, apply and inure to the benefit of the
heirs, executors, administrators and assigns respectively of the OSF and the City and
all of such covenants shall be construed as covenants running with the land.
14. Notices. All notices required or permitted to be given under this agreement shall
be in writing and shall be deemed given and received two days after deposit in the
United States mail, certified or registered form, postage prepaid, return receipt
requested, addressed as follows:
To OSF:
Paul Nicholson, Executive Director
OSF
15 South Pioneer Street
Ashland, OR 97520
To City:
City Administrator
20 East Main Street
Ashland, Oregon 97520
Notice given in any other manner shall be effective when it is received by the party for
whom it is intended. Either party may change its address by giving ten days' advance
notice to the other party.
15. Entire Agreement. This agreement contains the final and entire understanding
between OSF and City with respect to its subject matter and is intended to be an
integration of all prior negotiations and understandings. OSF and City shall not be
bound by any terms, conditions, statements, warranties, or representations not
PAGE 7-ELEVATOR LEASE (p:agree\shakele3.lsel
contained in this agreement. No change or modification of this Agreement shall be
valid unless it is in writing and is signed by both OSF and City.
Oregon Shakespeare Festival Association
~~I~~~
City of Ashland
By
Its
--I
BY~/~ ),Adc<CL___.
atherine M. Golden, Mayor -
~
By
B rbara Christensen, City Recorder
PAGE 8-ELEVATOR LEASE (p;agree\shakele3.1sel
E.x:h..i.b.i.t
· A.
LAN D
DES C RIP T ION
Commencing at the centerline terminus of Winburn Way, as
retraced, from which the One Quarter corner common to Sections 8
and 9, Township 39 South, Range 1 East of the Willamette Base and
Meridian, Jackson County, Oregon bears South 23 degrees 40 minutes
00 seconds West for a distance of 1597.51 feet; a lead slug with
round brass tag marked LS 759 in top of concrete curb bears South
53 degrees 32 minutes 47 seconds East for a distance of 31.375
feet and the Southeast corner of Lot 9, Block 1 according to the
official map of the City of Ashland dated Nov. 5, 1888 bears North
00 degrees 05 minutes 19 seconds East for a distance of 20.1 feet,
more or less; THENCE North 77 degrees 54 minutes 10 seconds East
for a distance of 144.58 feet to the TRUE POINT OF BEGINNING:
THENCE North 69 degrees 52 minutes 22 seconds West for a
distance of 12.83 feet to a point;
THENCE North 20 degrees 15 minutes 08 seconds East for a
distance of 10.6 feet, more or less, to the outside wall of an
existing building;
THENCE South 69 degrees 52 minutes 22 seconds East along the
face of said building wall, for a distance of 12.83 feet to a
point which bears North 20 degrees 15 minutes 08 seconds East from
the true point of beginning;
THENCE leaving the face of said existing building wall, South
20 degrees 15 minutes 08 seconds West for a distance of 10.6 feet,
more or less, to the true point of beginning.
Together with and
restrictions of record
subject to covenants, easements, and
and those apparent on the land.
p~~~~T~~.8 October 8, 1997
LAND SURVEYOR.
10
City of Ashland
20 East Main Street
Ashland, Oregon 97520
ref: C97T39.1eg
SWAIN
Surveyor's Registration Renewal
date: June 30, 1998
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