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HomeMy WebLinkAboutO-1544ORDINANCE NO. 1544 BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF FAIRHOPE, ALABAMA, AS FOLLOWS: SECTION 1. It is hereby established and declared that the following described real property of the City of Fairhope, Alabama, is not needed for public or municipal purposes during the term of this lease, the building and land situated at 350 Morphy Avenue. SECTION 2. The City of Fairhope, Alabama, having received an offer from Theatre 98, Inc. to lease that real property described in Section 1, above, it is hereby declared to be in the best interest of the public and the City of Fairhope, Alabama, to lease said real property to Theatre 98, Inc. under the following terms and conditions, to -wit: The term of this lease agreement shall begin on August 1, 2015 and shall extend for a period of 10 years from the date the ordinance authorizing this lease is effective. Lessee is hereby granted an option to renew this lease for another 10 years on terms to be agreed to between the parties. Lessee promises and agrees in lieu of rent to maintain the premises and keep them in good repair. An additional obligation of Lessee, in lieu of monthly rental is that Lessee shall perform services for the City and the local community by putting on at least four (4) performances per year for city and county residents. The value of the performances presented to youth and senior citizens in the community shall be at least $3,000.00 per calendar year. Lessee shall furnish and pay for all electricity, gas, water, fuel, or any services or utilities used in or assessed against the premises, unless otherwise expressly provided in this agreement. Lessee shall also be responsible for removal of garbage from the leased premises. All other terms and conditions are set forth in the lease agreement. SECTION 3. Pursuant to the authority granted by Section 11-47-21 of the Code of Alabama of 1975, the Mayor of the City of Fairhope, Alabama, is hereby directed to execute said lease agreement in the name of the City of Fairhope, Alabama. Ordinance No. 1544 Page -2- SECTION 4. The sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by a court of competent jurisdiction, then such ruling shall not affect any other paragraphs and sections, since the same would have been enacted by the municipality council without the incorporation of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5. This ordinance shall take effect immediately upon its due adoption and publication as required by law. ADOPTED THIS 27TH DAY OF JULY, 2015 ATTEST: isa A. Hank ; MMC City C erk LEASE AGREEMENT Lease agreement made August 1, 2015, between the City of Fairhope, a municipal corporation organized under the laws of Alabama, having its administrative offices at 161 North Section Street, Fairhope, Alabama 36532 ("lessor"), and Theatre 98, Inc., a corporation organized under the laws of Alabama, having its principal office at 350 Morphy Avenue, Fairhope, Alabama 36532 ("lessee"). SECTION ONE. DESCRIPTION OF PREMISES Lessor does now lease to lessee the building and land situated at 350 Morphy Avenue, Fairhope, Alabama. SECTION TWO. TERM The term of this lease shall extend for a period of ten years from the date the ordinance authorizing this lease is effective. Lessee is hereby granted an option to renew this Lease for another ten years on terms to be agreed to between the parties. SECTION THREE. RENT Lessee promises and agrees in lieu of rent to maintain the premises and keep them in good repair. An additional obligation of Lessee, in lieu of monthly rental is that Lessee shall perform services for the City and the local community by putting on at least four (4) performances per year for city and county residents. The value of the performances presented to youth and senior citizens in the community shall be at least $3,000.00 per calendar year. SECTION FOUR. POSSESSION AT BEGINNING OF TERM Lessor shall use due diligence to give possession as nearly as possible at the beginning of the term of this lease, and rent shall abate pro rata for the period of any delay in so doing. Lessee shall make no other claim against lessor for such delay. SECTION FIVE. QUIET ENJOYMENT Lessor agrees that lessee shall lawfully, peacefully, and quietly hold, occupy and enjoy the leased premises during the term of the lease without objection or molestation. Lease, Ci airhope and Theatre 98, Inc. Page 2 of 10 SECTION SIX. USE OF THE LEASED PREMISES Lessee agrees that the leased premises shall be used by lessee exclusively as a performing arts theater. Such use shall conform to applicable city ordinances and state and federal laws. No other usage of the building shall be allowed unless prior written consent is obtained from the lessor and the written consent shall be granted or not granted at the absolute discretion of lessor, it being understood that it is the purpose of lessor to maintain the neighborhood and preserve the building. Lessee may not sublet any or all of the premises without prior written approval from lessor. SECTION SEVEN. ACCEPTANCE BY LESSEE Lessee has inspected and knows the condition of the premises and accepts the same in their present condition (subject to ordinary wear, tear, and deterioration if the term commences after the date of this agreement and to the rights of present or former occupants, if any, to remove movable property), including the condition of the interior surfaces of exterior walls. Lessor does not warrant the condition of the premises. SECTION EIGHT. LESSOR'S RIGHT OF ENTRY Lessor or lessor's agent may enter the premises at reasonable hours to examine the same, to do anything lessor may be required to do under this lease or which lessor may deem necessary for the good of the premises or any building of which they are a part. SECTION NINE. MAINTENANCE AND REPAIR BY LESSEE Lessee shall take good care of the premises and the equipment and fixtures in the premises and shall keep the same in good working order and condition, including particularly the protection of water pipes, electrical systems, heating and air conditioning equipment, plumbing, fixtures, appliances, and utility lines and systems, and shall keep the premises and the approaches, sidewalks, and the alleys adjacent to the premises, if any, clean and presentable (including policing the grounds if they are included in the leased premises), free from ice and snow and from fire hazard and any other nuisance. At the expiration of the term, lessee shall surrender the premises broom clean, in as good condition as the reasonable use of the premises will permit. All damage or injury to the leased premises not caused by fire and other casualty, as set forth in SECTION FIFTEEN, and all damage to glass shall be promptly repaired by lessee. Lessee shall keep in repair the roof, exterior walls, gutters, and downspouts of the building leased, except as to damage arising from the negligence of lessor, but nothing in this agreement shall be construed as requiring lessor to repair any front doors, the interior, or glass in windows or doors. Any repairs, renovations, or modifications of the building must not change the exterior and must be approved by lessor. Lease, Ci airhope and Theatre 98, Inc. Page 3 of 10 All building repairs, alterations, additions, improvements, installation, equipment, and fixtures, by whomsoever installed or erected (except such equipment and business trade fixtures belonging to lessee as can be removed without damage to or leaving incomplete the premises or building) shall belong to lessor and remain on and be surrendered with the premises as a part of the premises, at the expiration of this lease or any extension of it. SECTION TEN. UTILITIES AND SERVICES Lessee shall furnish and pay for all electricity, gas, water, fuel, or any services or utilities used in or assessed against the premises, unless"btherwise expressly provided in this agreement. Lessee shall also be responsible for removal of garbage from the leased premises. Lessor does not guarantee the condition and efficiency of the boilers, furnaces, hot water heaters, or air conditioning units. SECTION ELEVEN. SIGNS AND ADVERTISEMENTS Lessee shall not put upon, or permit to be put upon, any part of the premises, any signs, billboards, or advertisements whatever, without the prior written approval of the City Building Official. SECTION TWELVE. INSURANCE Lessee shall comply with all insurance regulations so that the lowest fire, lightning, explosion, extended coverage, and liability insurance rates may be obtained. Nothing shall be done or kept in or on the premises by lessee which will cause an increase in the premium for any of such insurance of the premises or on any building of which the premises are a part or on any contents located in the same, over the rate usually obtained for the proper use of the premises permitted by this lease or which will cause cancellation of any such insurance. If lessee's use of the premises is responsible for an increase in the insurance rates on the building of which the premises are a part, then in such event, lessee agrees to pay any resulting increase in premiums on such building. SECTION THIRTEEN. INDEMNIFICATION; INSURANCE Lessee covenants at all times to indemnify and save lessor harmless from all loss, liability, cost, or damages that may occur or be claimed with respect to any person or property on, in or about the leased premises or to the leased premises themselves resulting from any act done or omission by or through lessee, its agents, employees, invitees, or any person on the premises by reason of lessee's use or occupancy or resulting from lessee's nonuse, or possession of such property and any and all loss, cost, liability, or expense resulting from Lease, C airhope and Theatre 98, Inc. Page 4 of 1- the same; and further covenants at all times to maintain such premises in a safe and careful manner. During the term of this agreement, lessee shall obtain, pay all premiums for, and furnish certificates to lessor for the following insurance: A. General liability insurance protecting the parties to this agreement, their agents, officers, elected officials, representatives, or employees because of liability incurred by the parties in the performance of the terms of this lease when such liability is imposed on account of injury to or death of a person or persons, such policy to provide limits on account of any accident resulting in injury or death to one person of not less than $1,000,000.00 of personal injury liability insurance per person and a liability limit on account of any accident resulting in injury or death to more than one person of not less than $2,000,000.00 of personal injury liability insurance per occurrence. These required insurance policies shall name Lessor as an additional insured party. B. Property damage, fire and legal liability insurance covering fire and other perils for liability that may be incurred by the Lessee in performance of the terms of this Lease. Such policy shall provide for a limit of insurance of not less than $300,000.00. Lessor agrees that Lessee has no obligation to otherwise insure property damage covering the leased buildings. Lessee agrees to insure its property and improvements located on the leased premises. All such insurance contracts shall name lessor and lessee as their interests appear and shall inure to the benefit of lessee and lessor and their officers, agents, elected officials, representatives, or employees. Such insurance contracts shall be with companies acceptable to lessor and they shall require thirty (30) days' prior written notice to both parties of any cancellation. SECTION FOURTEEN. DAMAGE TO PROPERTY ON PREMISES Lessee agrees that all property of every kind and description kept, stored, or placed in or on the premises shall be at lessee's sole risk and hazard and that lessor shall not be responsible for any loss or damage to any of such property resulting from fire, explosion, water, steam, gas, electricity, or the elements, whether or not originating in the premises, caused by or from leaks or defects in or breakdown of plumbing, piping, wiring, heating, or any other facility, equipment, or fixtures or any other cause or act and whether or not resulting from the negligence of lessor or other tenants of lessor or anyone for whom lessor may be responsible. Lease, Ci irhope and Theatre 98, Inc. Page 5 of 10 SECTION FIFTEEN. DAMAGE BY CASUALTY In case the leased premises shall be destroyed or shall be so damaged by fire or other casualty, as to become untenantable, then in such event, at the option of lessor, this lease shall terminate from the date of such damage or destruction and lessee shall immediately surrender such premises and all interest in the premises to lessor, and lessee shall pay rent only to the time of such surrender. Lessor shall exercise such option to terminate this lease by notice in writing delivered to lessee within sixty (60) days after such damage or destruction. In case lessor shall not elect to terminate this lease in such event, this lease shall continue in full force and effect and lessor shall repair the leased premises with all reasonable promptness, placing the same in as good a condition as they were at the time of the damage or destruction and for that purpose may enter such premises, and rent shall abate in proportion to the extent and duration of untenantability. In either event, lessee shall remove all rubbish, debris, merchandise, furniture, equipment, and other personal property, within thirty (30) days after the request of lessor. If the leased premises shall be only slightly injured by fire or the elements, so as not to render the same untenantable and unfit for occupancy, then lessor shall repair the same with all reasonable promptness, and in that case the rent shall not abate. No compensation or claim shall be made by or allowed to lessee by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of the building or the leased premises, however the necessity may occur. SECTION SIXTEEN. EMINENT DOMAIN If the premises or any substantial part of the premises shall be taken by any competent authority under the power of eminent domain or be acquired for any public or quasi -public use or purpose, the term of this lease shall terminate upon the date when the possession of such premises or the part so taken shall be required for such use or purpose and without apportionment of the award, and lessee shall have no claim against lessor for the value of any unexpired term of this lease. If any condemnation proceeding shall be instituted in which it is sought to take or destroy any part of lessor's building or the land under it or if the grade of any street or alley adjacent to the building is changed by any competent authority and such change of grade makes it necessary or desirable to remodel the building to conform to the changed grade, lessor shall have the right to cancel this lease after having given written notice of cancellation to lessee not less than ninety (90) days prior to the date of cancellation designated on the notice. In either of such events, rent at the then current rate shall be apportioned as of the date of the termination. No money or other consideration shall be payable by lessor to lessee for the right of cancellation and lessee shall have no right to share in the condemnation award or in any judgment for damages caused by the taking or the change of grade. Nothing in this section shall preclude an award being made to lessee for loss of business or depreciation to and cost of removal of equipment or fixtures. Lease, C airhope and Theatre 98, Inc. Page 6 of 1v SECTION SEVENTEEN. PUBLIC REQUIREMENTS Lessee shall comply with all laws, orders, ordinances, and other public requirements now or later affecting the premises or the use of the premises, and save lessor harmless from expense or damage resulting from failure to do so. The leased premises are not exempted from compliance with zoning or any other municipal codes or ordinances or from any other requirements of law due to title being in the name of lessor. SECTION EIGHTEEN. ASSIGNMENT OR SUBLEASE Lessee shall not assign, transfer, or encumber this lease and shall not sublease the premises or any part of the premises or allow any other person to be in possession of the premises without the prior written consent of lessor. SECTION NINETEEN. RECORDING Lessee shall not, without the prior written approval of lessor, record this lease or cause it to be recorded. If lessee does cause it to be recorded, lessor may terminate the lease, upon thirty (30) days' notice, at its sole option. SECTION TWENTY. SURRENDER AT END OF TERM At the expiration of the term of this lease, lessor or its agent shall have the right to enter and take possession of the leased premises, and lessee agrees to deliver the same without process of law. Lessee shall be liable to lessor for any loss or damage, including attorney's fees and court costs incurred, as a result of lessee's failure to comply with this obligation. SECTION TWENTY-ONE. HOLDING OVER Any holding over by lessee after the expiration of the term of this lease or any extension of it shall be construed to be a tenancy from month to month at a monthly rental of $1,800.00. Nothing in this agreement shall be construed to authorize any such holding over. SECTION TWENTY-TWO. DEFAULT If default is made in the payment of any installment of rent on its due date, or if lessee shall default in the performance of any other agreement (other than payment of rent) continuously for fourteen (14) days after written notice of default, or if the premises be vacated or abandoned, then in any such event this lease shall terminate, at the option of lessor, and lessor may re-enter the premises and take possession, with or without legal process and without notice or demand. The service of notice, demand, or legal process in such case is waived, and upon such entry by lessor, this lease shall terminate and lessor Lease, C airhope and Theatre 98, Inc. Page 7 of 10 may exclude lessee from the premises, changing the lock on the door or doors if deemed necessary, without being liable to lessee for any damages or for prosecution for the same. Lessor's rights in such event may be enforced by action in unlawful detainer or other proper legal action, and lessee agrees, notwithstanding termination of this lease and reentry by lessor that lessee shall remain liable for a sum equal to the entire rental payable to the end of the term of this lease and shall pay any loss or deficiency sustained by lessor on account of the premises being let for the remainder of the original term for a less sum than before. Lessor, as agent for lessee, without notice may relet the leased premises or any part of the premises for the remainder of the term or for any longer or shorter period as opportunity may offer, and at such rental as may be obtained, and lessee agrees to pay the difference between a sum equal to the amount of rent payable during the remainder of the term and the net rent actually received by lessor during the term after deducting all expenses of every kind for repairs, recovering possession, and reletting the same, which difference shall accrue and be payable monthly. All property of lessee which is now or may later be at any time during the term of this lease in or upon such premises, whether exempt from execution or not, shall be bound by and subject to a lien for the payment of the rent reserved in this lease, and for any damages arising from any breach by lessee of any of the covenants or agreements of this lease to be performed by lessee. In the event of default by lessee in the payment of rent or otherwise, lessor may foreclose such lien and take possession of such property or any part of it and sell or cause the same to be sold, at such place as lessor may elect, at public or private sale, with or without notice, to the highest bidder for cash, and apply the proceeds of such sale to pay the costs of taking possession of and selling such property, and then toward the debt and/or damages. Any excess of the proceeds of the sale over such costs, debt, and/or damages shall be paid to lessee. Any such sale shall bar any right of redemption by lessee. SECTION TWENTY-THREE. NO WAIVER The rights and remedies of lessor under this lease, as well as those provided or accorded by law, shall be cumulative, and none shall be exclusive of any other rights or remedies under this lease or allowed by law. A waiver by lessor of any breach or breaches, default or defaults, of lessee under this lease shall not be deemed or construed to be a continuing waiver of such breach of default nor as a waiver of or permission, expressed or implied, for any subsequent breach or default, and it is agreed that the acceptance by lessor of any installment of rent, subsequent to the date the same should have been paid under this lease, shall in no manner alter or affect the covenant and obligation of lessee to pay subsequent installments of rent promptly upon the due date. No receipt of money by lessor after the termination in any way of this lease shall reinstate, continue, or extend the term above -demised. SECTION TWENTY-FOUR. BANKRUPTCY Neither this lease nor any interest in it nor any estate created by this lease shall pass to any trustee or receiver in bankruptcy or to any other receiver or assignee for the benefit of creditors or otherwise by operation of law during the term of this lease or any renewal of it. Lease, 0 airhope and Theatre 98, Inc. Page 8 of 10 SECTION TWENTY-FIVE. ENCUMBRANCES Any assignment, transfer, or conveyance by lessee of any property rights arising out of this lease shall not encumber, alienate, diminish, cloud, or impair in any way the title ownership and interests of lessor in and to such property. Lessee shall promptly pay when due all obligations or indebtedness incurred under or by virtue of this lease, including but not limited to taxes, labor, services, materials, supplies, utilities, furnishings, machinery, or equipment which may be secured by any mechanic's or materialmen's lien or any other lien against the premises leased. This lease is subject to provisions of the city charter, ordinances, and state statutes prohibiting alienation of title. SECTION TWENTY-SIX. NOTICES Any notice under this lease shall be sufficient if sent by first class U.S. mail, postage prepaid, addressed to Lessee at P. O. Box 686, Montrose, AL 36559 and to Lessor at P. O. Drawer 429, Fairhope, AL 36533. SECTION TWENTY-SEVEN. COVENANTS TO RUN WITH THE PREMISES The covenants contained in this lease shall run with the leased premises, and shall bind the heirs, executors, administrators, assigns, and successors of lessor and lessee respectively. Consent of lessor to assignment, and acceptance of rent from assignee of lessee shall not release lessee from the obligation to pay rent and comply with the other conditions of this lease. SECTION TWENTY-EIGHT. NO ASSIGNMENT Lessee shall not assign this lease or sublet any portion of the leased premises without the prior written consent of Lessor. SECTION TWENTY-NINE. ENTIRE AGREEMENT This agreement contains the entire agreement between the parties, and no modification of this agreement shall be binding upon the parties unless evidenced by an agreement in writing signed by lessor and lessee after the date of this lease. SECTION THIRTY. APPROVAL BY CITY COUNCIL This lease is not effective until it is approved by ordinance by lessor's city council. Lease, airhope and Theatre 98, Inc. Page 9 o_ __ The parties have executed this agreement at Fairhope, Alabama the day and year first above -written. CITY OF FAIRHOPE, ALABAMA By: Attest: Lisa A. anks, MMC City Cle k THEATRE 98, INC. By: As Its President STATE OF ALABAMA COUNTY OF BALDWIN I, the undersigned, a Notary Public in and for said County in said State, do hereby certify that TIMOTHY M. KANT and LISA A. HANKS whose names as Mayor and City Clerk, duly constituted agents of the City of Fairhope, Alabama are signed to the foregoing conveyance, and who are known to me acknowledged before me on this day, that being informed of the contents of said instrument and with fully authority in their representative capacities, executed the same voluntarily for and as the act of the City of Fairhope, a municipal corporation on the day the same bears date. Given under my hand and seal on this the Aiday of 2015 (AFFIX SEAL) Notary Public 0 41 My Commission Expires: My Commission Expires 03/23/2010 Lease, airhope and Theatre 98, Inc. Page 10 o, .0 STATE OF ALABAMA COUNTY OF BALDWIN 1, the rsigned,•a Notary Public in and for said County in said State, do hereby certify that whose name as President of THEATRE 98, INC., an Alabama non-profit corporation is signed to the foregoing document, and who is known to me acknowledged before me on this day, that being informed of the contents of said instrument, she/he, as such officer and with full authority executed the same voluntarily for and as the act of said corporation on the day the same bears date. Given under my hand and seal on this the day of ) 2015. �as (g�`AL) ,�• �i 7 INSTRUMENT PREPARED BY: Marion E. Wynne City Attorney P. O. Box 1367 Fairhope, AL 36533 (251) 928-1915 Notary Public My Commission Expires: 4 - aol