HomeMy WebLinkAbout2000-040 Lease - OSFLEASE
THIS LEASE is entered into this ~O day of.~¢~,~____, 2000, between
THE CITY OF ASHLAND, by and through its Council and the Ashland Parks and
Recreation Commission (the "City") and the OREGON SHAKESPEARE FESTIVAL
ASSOCIATION, an Oregon corporation ("OSF").
RECITALS
A. In 1969 the City obtained a grant of funds from the Economic Development
Administration of the Department of Commerce of the United States, and OSF
contributed certain real property to the City, together with funds equal in amount to the
grant, for the purpose of construction and expansion of the Shakespeare Theatre
facilities in the City of Ashland for the use and benefit of the City and OSF.
B. On August 29, 1969, the City and OSF entered into a Lease (the
"1969 Lease") of the real property described in the attached Exhibit A (the "Original
Property"), which included the facilities referred to in Recital A. The term of such lease
has been extended to 2019.
C. In 1991 OSF constructed the Allan Pavilion of the Elizabethan Theatre as a
leasehold improvement to the Original Property. In 1994 OSF constructed an addition to
the Angus Bowmer Theatre (the "Bowmer Theatre") on the Original Property for patron
restrooms.
D. OSF has proposed to construct, at its expense, an additional theatre and a
two-to-three level parking facility on the existing City parking lot described in the attached
Exhibit B (the "Additional Property"), and the City has agreed to make such real
property available to OSF for such purposes. The Additional Property is divided into two
parts, the "Parking Facility Property" and the "Theatre Property" which includes the space
in the Parking Facility Property used for theatre HVAC equipment.
E. It is in the interest of this community that during such periods as the
Bowmer Theatre and the facility known as Carpenter Hall located between the Original
Property and the Additional Property ("Carpenter Hall") are not required or in use by
OSF, use of such facilities be granted to civic groups, conventions and other
organizations at such times and for such purposes as the City and OSF may approve.
F. The City and OSF now wish to amend and replace the 1969 Lease of the
Original Property and to incorporate the Additional Property into a new lease of both
properties effective upon the execution of this Lease.
NOW, THEREFORE, the parties agree as follows:
1. TERM. The term of this Lease shall consist of a period which shall begin
on the date of the execution of this agreement and end on the date seventy-five (75)
years thereafter.
2. PROPERTY. The City does hereby lease to OSF the Original Property and
the Additional Property (collectively, the "Property"), together with all improvements
thereon except for the parking facility, whether in existence at this time or placed thereon
during the term of this Lease or any renewal thereof together with all fixtures and
equipment owned by the City and now or hereafter placed upon the Property which may
be required or incident to use and operation of the facilities on the Property by OSF,
subject; however, to the City's reservation of the air space above the parking facility
described in Section 13 below.
3. USE OF PROPERTY. Except as otherwise provided in Section 13, OSF
shall have sole and exclusive possession and use of the Property and all improvements,
facilities and equipment thereon during the term of this Lease, and any renewal of such
term, for theatrical productions or such other theater-related or community uses which
are generally consistent with its Corporate Charter. The parties understand that except
for the Parking Facility, OSF may set policies at its sole discretion regarding use of the
Property. It is further understood and agreed that OSF shall grant to civic groups,
professional organizations or governmental agencies temporary use of Bowmer Theatre
and Carpenter Hall when the OSF theatres are not in use, if such use, at OSF's sole
determination, will not interfere with the operation of the activities of OSF, provided
however, that OSF receives payment of a reasonable rental based upon the cost of
maintenance, operation and services rendered or incurred by OSF in connection with
such use.
4. DEVELOPMENT OF PARKING. OSF shall construct a multi-level parking
structure on the Additional Property providing approximately 140 parking spaces for the
public. This structure shall be completed and open for use on or before the completion of
the theater to be built upon the Additional Property. OSF shall not remove any existing
public parking on the Additional Property (existing as of the date this lease is effective
between the.parties) until it has received all necessary approvals and permits to construct
the theater and parking facility. Upon the removal of any existing public parking, OSF
shall commence construction of the parking facility and shall prosecute it to completion
with diligence.
5. CONSIDERATION. In addition to the covenants of OSF contained in this
Lease, OSF has provided the following consideration for this Lease:
(a) Conveyance of the Original Property to the City;
(b) Contribution by OSF of a portion of the funds for construction of the
facilities on the Original Property;
(c) Construction by OSF of the additional improvements to the Original
Property as described in Recital C above; and
(d) Construction by OSF of the theatre and parking facilities on the
Additional property.
6. TITLE TO IMPROVEMENTS AND FIXTURES. All structures and
improvements of whatever kind and nature erected or made to the Original Property by
OSF during the term of the 1969 Lease or this Lease, together with any and all additions,
alterations and permanent fixtures now or hereafter installed upon the Original Property,
shall be the property of the City, except that the City shall have no ownership, title or
interest in any machinery, equipment, appurtenances or fixtures placed by OSF in or
upon the Original Property which is not actually so affixed as to become an integral part
of the buildings or facilities. All structures and improvements of whatever kind and nature
erected or made to the Additional Property by OSF during the term of this Lease,
together with any and all additions, alterations and permanent fixtures now or hereafter
installed upon the Additional Property, shall be the property of OSF during the term of this
Lease. All structures and improvements of whatever kind and nature erected on or made
to the Parking Facility Property by OSF shall be the property of the City. Upon
termination of this Lease, all structures and improvements on the Additional Property,
together with any and all additions, alterations and permanent fixtures thereon, shall
become the property of the City, except that the City shall have no ownership, title or
interest in any machinery, equipment, appurtenances or fixtures placed by OSF in or
upon the Additional Property which is not actually so affixed as to become an integral part
of the buildings or facilities.
7. ALTERATIONS. OSF shall have the right to make changes to and
alterations of the Property, subject to the following conditions:
(a) Except as herein provided, OSF may at OSF's expense make such
alterations, improvements, additions and changes to the Property as it may deem
necessary or expedient in the operation of the Property, provided OSF, without the
written consent of the City, shall not tear down or materially demolish any of the
improvements upon the Property or make any material change or alteration in
such improvements, which, when completed, would substantially diminish the
value or substantially alter the use of the Property.
(b) At all times when any change or alteration is in progress, there shall
be maintained, at OSF's expense, worker's compensation insurance in
accordance with law covering all persons employed in connection with the change
or alteration, and general liability insurance for the mutual benefit of OSF and the
City expressly covering the additional hazards due to the change or alteration.
8. REPAIR AND MAINTENANCE. OSF shall not cause or permit any waste,
damage or injury to the Property. OSF, at its sole expense shall keep the Property as
now or hereafter constituted with all improvements made thereto and the adjoining
sidewalks, curbs, walls and landscaping clean and in good condition (reasonable wear
and tear excepted) and shall make all repairs, replacements and renewals, whether
ordinary or extraordinary, seen or unforeseen, including all structural repairs, necessary
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to maintain the Property. All repairs, replacements, and renewals shall be at least equal
in quality of materials and workmanship to that originally existing in the Property. The
City shall in no event be required to make any repair, alteration, or improvement to the
Property. Any fixture, equipment or materials replaced by OSF shall belong to OSF, and
all proceeds from the disposition thereof may be retained by OSF. The City, at its sole
expense, shall keep the Parking Facility Property as now or hereafter constituted with all
improvements made thereto and the adjoining sidewalks, curbs, walls and landscaping
clean and in good condition (reasonable wear and tear excepted) and shall make all
repairs, replacements and renewals, whether ordinary or extraordinary, seen or
unforeseen, including all structural repairs, necessary to maintain the Property. OSF
shall defend and indemnify the City against all costs, expenses, liabilities, losses,
damages, suits, claims and demands because of OSF's failure to comply with the
foregoing, and OSF shall not call upon the City for any disbursement or outlay
whatsoever in connection therewith, and hereby expressly releases and discharges the
City of and from all liability therefor.
9. UTILITIES. OSF shall pay all charges for janitorial, garbage removal, gas,
electricity, light, heat, power, telephone and domestic water service used, rendered or
supplied upon or in connection with the Property and the facilities thereon. The City
agrees to supply irrigation water at its cost.
10. FIRE AND CASUALTY INSURANCE. OSF covenants and agrees to keep
the Property insured against loss by fire with extended coverage endorsement, including
risk of loss resulting from collapse of the structures, lightning, vandalism and malicious
mischief. Such insurance policies shall at all times be maintained in force in an amount
equal to the full insurable replacement value of the premises and properties insured.
Certificates evidencing such insurance and bearing endorsements requiring thirty (30)
days written notice to the City prior to any change or cancellation shall be furnished to the
City. It is a condition of payment of such insurance premiums by OSF that the proceeds
of any such insurance shall be applied to the repairing or restoration of the property
damage to the Property whether the loss is partial or total. The City of Ashland shall be
named as an additional insured on such policy.
11. LIABILITY INSURANCE. OSF shall procure, and during the term of this
Lease shall continue in force, the following policies of insurance at OSF's cost: Public
liability and property damage in a responsible company with limits of not less than
$250,000.00 for injury to one person, $500,000.00 for injury to two or more persons in
one occurrence, and $100,000.00 each occurrence for damage to property. City may
require OSF to increase these limits in the event of any change in the provisions of ORS
30.270, or in the event these limits are found to be not totally applicable to a city. Such
insurance shall cover all risks arising directly or indirectly out of OSF's activities on or as
a result of the condition of the Property and shall protect the City and OSF against all
claims of third persons. Certificates evidencing such insurance and bearing
endorsements requiring thirty (30) days written notice to the City prior to any change or
cancellation shall be furnished to the City. It is agreed that the City shall not be liable to
any third persons as a result of the use of the Property by OSF, its employees or agents,
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and OSF covenants and agrees to defend and indemnify the City from the claims of said
third persons by reason of the use of the Property by OSF herein.
12. REAL PROPERTY TAXES. If any portion of the property shall be assessed
for property taxes, such taxes shall be paid by OSF as due. OSF shall pay as due all
taxes on its personal property located on the Property and any special assessments
levied against the Property. As used in this paragraph, property taxes include any fees or
charges relating to the ownership, use, or rental of the Property, other than taxes on the
net income of OSF, if any.
13. AIR SPACE. City has all rights to the air space over the parking facility.
OSF will ensure that the parking facility has the engineering capacity of supporting two
additional levels of standard construction and the City reserves the right to approve plans
and specifications to ensure future use can be made of its air space. The City shall give
due consideration to, and shall seek to minimize, the impact on OSF of any planned air
space development (whether by City or any assignee), including but not limited to theater
operations, architectural compatibility and parking availability. If the City wishes to assign
or transfer all or any portion of these air space development rights to a third party, any
such assignment or transfer shall be subject to this restriction. In addition, at least six (6)
months prior to any such proposed assignment or transfer the City shall give OSF the
right to make a proposal for its own development of a project of equal or greater
community benefit, and the City shall give due and good faith consideration to such
proposal.. The City shall be responsible for all costs of constructing, maintaining and
operating any such facilities constructed by the City.
14. COST REIMBURSEMENT. The City will reimburse OSF for the additional
cost it incurs in constructing the intermediate level of parking and for strengthening
columns, footings and walls to enable subsequent construction above the Parking
Facility, including interest on such costs accrued at seven percent (7%) per annum.
15. COMPLIANCE WITH ADA. Except for the Parking Facility Property, OSF
shall be solely responsible for any improvements, alterations or repairs to the Property
required by the Americans with Disabilities Act (ADA), whether or not the ADA imposes
such requirements on the City as owner of the Property. OSF shall provide all services,
programs or activities conducted by it on the Property in compliance with the ADA,
whether or not such compliance is imposed by the AD.A upon the City. OSF shall defend
and indemnify and hold entirely free and harmless City from and against all ADA-related
claims, judgments, damages, penalties, fines, costs, liabilities, or losses which arise
during or after the lease term and which are imposed on, or paid by or asserted against
City by reason improvements, alterations or repairs to the Property or services, programs
or activities conducted on the Property by OSF.
16. COMPLIANCE WITH ENVIRONMENTAL LAWS. As used is this
paragraph, the term "hazardous material" means any hazardous or toxic substance,
material, or waste, including, but not limited to, those substances, materials, and wastes
listed in the United States Department of Transportation Hazardous Materials Table (49
C.F.R. § 172.101) or by the United States Environmental Protection Agency as
hazardous substances (40 C.F.R. Part 302) and any amendments, ORS 466.567,
466.205, 466.640 and 468.790 and regulations of the Oregon State Department of
Environmental Quality, petroleum products and their derivatives, and such other
substances, materials and wastes as become regulated or subject to cleanup authority
under any environmental laws. Environmental laws mean those laws cited in this
paragraph. OSF shall cause the Property and all operations conducted on the Property
(including operations by any subtenants) to comply with all environmental laws. OSF shall
not use or allow any agents, contractors or subtenants to use the leased property to
generate, manufacture, refine, transport, treat, store, handle, recycle, release or dispose
of any hazardous materials, other than at reasonably necessary for the operation of
OSF's activities as contemplated under this lease. OSF agrees to defend (with counsel
approved by City), fully indemnify, and hold entirely free and harmless City from and
against all claims, judgments, damages, penalties, fines, costs, liabilities, or losses
(including, without limitation, diminution in value of the premises, damages for the loss or
restriction on the use of rentable or usable space or of any amenity of the premises,
damages arising from any adverse impact on marketing of space, sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees) which arise during
or after the lease term and which are imposed on, or paid by or asserted against City by
reason or on account of, or in connection with, or arising out of OSF's generation,
manufacture, use, transportation, refinement, treatment, storage, or disposal of
hazardous materials, or any release of hazardous materials as a result of OSF's use or
activities, or of OSF's agents, contractors, or subtenants.
17. TERMINATION OF PRIOR LEASE. The 1969 lease between City and
OSF is terminated.
18. DEFAULT OR BREACH. If OSF commits any default or breach of any of
the terms or conditions of this Lease and fails or neglects to correct the same within six
(6) months after notice thereof by the City, then in such event, the City shall have the
right to immediately expel OSF from the Property and declare this Lease terminated. If
OSF fails to conduct the annual Shakespeare Festival for a period of three (3)
consecutive years, except for war, catastrophe or other circumstances beyond the control
of OSF, the City shall have the right to immediately terminate this Lease unless otherwise
agreed by the parties.
CITY OF ASHLAND
Common Council
City Recorder
OREGON SHAKESPEARE FESTIVAL
ASSOCIATION
Date: /,= - ::Ac. o-o Date:
ASHLAND PARK COMMISSION
Secretary
Date: ~ ' I~ -~_O~
NOTE: This lease was executed on behalf of the City of Ashland and the Ashland Park
Commission subject to the condition that the lease is not effective until the Oregon
Shakespeare Festival Association has obtained all land use approvals for the proposed theater
and public parking facility referred to in Recital Paragraph D. For further information, see the
minutes of the June 20, 2000, Ashland City Council meeting.
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EXHIBIT A
Tracts A, B, C, D
Beginning at the northwesterly corner of Lot 1 in Block 9 of the City of Ashland, Jackson
County, Oregon, according to the official 1888 map of said city; thence, South 55Q18'
East along the northeasterly line of said Lot 1 74.80 feet; thence, South 35[328' West
108.70 feet; thence, North 551318' West 8.36 feet; thence, South 35[302' West 61.60
feet; thence, North 55[318' West 66.0 feet to the northwesterly line of said Lot 1; thence,
North 35[;02' East along said line 170.30 feet to the point of beginning.
Tract E:
Beginning at a point which lies East 115.70 feet from the Southeast corner of Lot 9 of
Block No. 1 in the City of Ashland, Jackson County, Oregon; thence, continue East 19.0
feet to the Southwest corner of Lot 1 of Block No. 2 in said City; thence, South 68[330'
East 23.16 feet; thence, East 30.89 feet; thence, North 21 [330' East 4.20 feet; thence,
East 31.80 feet to the Westerly line of Lot 3 of Block No. 2 in said City of Ashland;
thence, South 21 [330' West 23.0 feet; thence, South 561319' East 36.50 feet to a point on
the north line of an alley 10 feet in width, thence, South 161315' West 10.40 feet to the
south line of said alley; thence, South 561319' East along said south line of alley 139.20
feet to the westerly line of South Pioneer Street in said City; thence, along said west line
South 35[302' West 170.60 feet to an angle point; thence, continue along said westerly
line of street South 29[~21' West 200.0 feet; thence, North 60[~39' West 83.0 feet;
thence, North 29[]21' East along the Westerly line of a walkway and a fence line 97.0
feet to a point which lines North 60[~39' West 83.0 feet from the westerly line of the
aforesaid South Pioneer Street; said point being also 5 feet southerly from the southerly
side of the concrete wall which surrounds the Shakespearean Amphitheater; thence, on a
curved line in a northwesterly direction at a distance of 5 feet southwesterly from said wall
a distance of 117.0 feet more or less to the most westerly projection of the
Shakespearean Theatre Building; thence, continue northerly on a curve which lies 10 feet
westerly from the aforesaid wall 18 feet more or less to the southerly side of concrete
steps leading from the rear of said theatre to the duck pond, thence, along said step line
31.0 feet to a point which lies South 21 [330' West 230.0 feet from the point of beginning;
thence, North 21 [330' East 230.0 feet to the point of beginning.
Tract F.:
Beginning at the intersection of the Southerly line of Main Street with the Westerly line
of First Avenue (formerly known as Hargadine Avenue) in the City of Ashland, Jackson
County, Oregon; thence, South 35[302' West, along the Westerly line of said First
Avenue, 100.0 feet to the Northerly side-line of alley as described in Volume 56, Page
150 of the Deed Records of Jackson County, Oregon; thence, North 56 [] 19" West,
along said line, 30.0 feet; thence, North 35[;02' East 100.0 feet to the Southerly line of
said Main Street; thence, South 56E~ 19' East, along said line, 30.0 feet to the point of
beginning.
SUBJECT TO:
1. The right of access to the properties adjoining the alley from Pioneer
Street along a portion of the northerly side of the above-described Tract E.
2. The interest of the legal titleholders, William H. Briggs and Dorothy Briggs,
husband and wife, to a portion of the above-described Tract E over which said legal
titleholders have granted to the City of Ashland a perpetual easement for landscaping
and walkway purposes.
3. Party wall rights, contained in instruments recorded in Volume 69, Page
565 and Volume 77, Page 2 of the Deed Records of Jackson County, Oregon. (Affects
Westerly line of Tract F.)
4. Restrictive conditions set forth in Deed dated October 29, 1962, and
recorded November 14, 1962, in Volume 536, Page 336 of the Deed Records of
Jackson County, Oregon. (Affects Tract F.)
EXHIBIT B
LEASE DESCRIPTION
OREGON SHAKESPEAREAN FESTIVAL ASSOCIATION
Commencing at the Northwest corner of Lot 2, Block 9 in the City of Ashland,
Jackson County, Oregon, according to the official map of said City, adopted by the City
Council on November 5, 1888; thence South 35° 02' West, along the Northwesterly
boundary of said Lot 2, 108.7 feet to the True Point of Beginning; thence South 55° 18'
East, 8.36 feet to the Northwesterly boundary of that parcel of land described in
Document No. 92-18504 of the Jackson County Deed Records; thence South 35° 02'
West, along said boundary 21.30 feet to the southwest corner thereof; thence South 55°
18' East, 57.64 feet to the southeasterly boundary of Lot 2; thence South 35° 02' West
along the southeasterly boundary of said lot, 20.0 feet; thence South 55° 18' East, 192
feet more or less to the Northwesterly boundary of an alley; thence South 35° 02' West
along said alley, 180 feet more or less to the North right of way line of Hargadine Street;
thence North 54° 41' West, along said North right of way line, 258 feet more or less to
the Northwesterly boundary of Lot 2, thence North 35° 02' East, along said boundary
221.3 feet to the point of beginning.
LOTS 391E9BC 300, 400, 800, 901
CITY OF ASHLAND, ENGINEERING DIVISION
JUNE 2, 2000
G:Dawn\Engineer\Surveyor~ 391EgBC 300, 400, 800, 901 Exhibit A,doc