HomeMy WebLinkAbout1996-202 Lease - Community WorksLEASE
Date:
December 1, 1996
Lessor: City of Ashland, Oregon ("Lessor")
Lessee: Community Works, an Oregon non-profit corporation ("Lessee")
Lessor leases to Lessee, and Lessee leases from Lessor, the real property (the
"premises") described on the attached Exhibit A. Lessor reserves the right to use the
driveway on the easterly portion of the premises for access to Lessor's property
adjoining the premises. Neither Lessee nor Lessor shall make any use of the driveway
that would unreasonably interfere with the other's use, possession and access. The
parties shall cooperate during any instances of concurrent use.
The premises are leased for a term (the "Term") of 25 years (subject to an option to
extend for three terms of five years each as set forth in section 19), commencing on
the date of this lease.
Lessor and Lessee agree as follows:
1. Project Conditions.
1.1. Lessee intends to construct a building (the "Building") and related
improvements on, under, and over the premises. The Building and all the related
improvements are referred to in this lease as the "Project." The Project and any future
alterations, additions, replacements, or modifications to the Project during the Term of
this lease are referred to in this lease as the "Improvements." Lessee shall construct
no Improvements upon the driveway referred to in the opening paragraph of this
lease. This lease shall be conditioned on Lessee obtaining all necessary governmental
approvals, consultants reports, final plans and specifications, design and construction
contracts, and any other approvals, loan and lease commitments, or contracts
reasonably determined to be necessary by the Lessor and the Lessee.
1.2. The foregoing condition shall be for the benefit of both parties and must be
satisfied or waived by both the parties on or before 5:00 p.m. on June 30, 1997, or
this lease shall terminate and be of no further force and effect. In such event neither
party shall have any further liability under this lease except for liability accrued before
the date of termination.
1.3. Lessor shall cooperate with Lessee in all respects in connection with
satisfying the condition. Lessor shall execute such applications and other instruments
reasonably necessary to satisfying the condition, provided that Lessor shall not be
required to pay any application fees or incur any other costs or liability in connection
with satisfying the condition.
PAGE 1-LEASE (p:real\comnwrks.lsS)[Novernber 8, 1996]
2. Construction of the Project. Lessee shall construct the Project in accordance with
the final plans and specifications approved by Lessor, which approval shall not be
unreasonably withheld or delayed. Lessor's approval will be based solely on its desire
to have the premises resemble and be compatible with the architecture and colors of
the existing improvements of the Civic Center Campus. Excavation for the foundation
of the Building shall commence no later than 60 days after the satisfaction or waiver of
the condition to this lease stated in section 1.2. Lessee shall, subject to acts of God,
strikes, or any other reason beyond the reasonable control of Lessee, diligently
prosecute the work to completion of the:
2.1. Exterior walls, roof, doors and windows including painting of the exterior
walls of the Building and installation of water, sewage, gas and electrical services to
the Building, and
2.2. Interior floor coverings and electrical, plumbing and heating systems in the
Building.
by no later than required under HUD regulations. The work shall be performed in
accordance with all Legal Requirements and in a good and professional manner. The
term "Legal Requirements" includes all present and future laws, ordinances, orders,
rules, regulations, and requirements of all federal, state, and municipal governments,
departments, commissions, boards, and officers, foreseen or unforeseen, ordinary as
well as extraordinary. Lessor, as a municipal government, shall not adopt any special
Legal Requirements, that would attempt to modify this lease or otherwise limit or
monitor Lessee's use and quiet enjoyment of the premises. Nothing is this paragraph,
however, shall be interpreted to limit the municipal powers of the city or to limit the city
council or future city councils to adopt general legislation in good faith that may
incidentally affect this lease or Lessee's use or quiet enjoyment. Lessor shall have the
right to inspect the work at reasonable intervals subject to the supervision of Lessee
and in a manner that will minimize any interference with the work.
3. Minimum Rent.
3.1. No rent shall be payable with respect to the premises.
3.2. Lessee shall pay without notice, except as may be provided in this lease,
and without abatement, deduction, or setoff, all sums, impositions, costs, and other
payments which Lessee in any of the provisions of this lease assumes or agrees to
pay.
4. Purposes.
4.1. Lessee shall use and occupy the premises continuously during the Term
for public services relating to a youth and family resource and community center
serving a population comprised of least 51% who have low or moderate incomes as
defined by the U.S. Department of Housing and Urban Development. The premises
PAGE 2-LEASE (p:real\comnwrks.lsS)[November 8. 1996]
may not be used for any other purpose or be the subject of a change in concept,
except those uses or purposes permitted under CDBG requirements, without the
written consent of Lessor, which consent shall not be unreasonably withheld. Lessor
shall have the right to approve any signs or displays Lessee may desire to erect on or
about the premises that are visible from the exterior of the Building, in order to ensure
that Lessor may control the quality and character of the presentation displayed by
Lessee.
4.2. Lessee shall encourage and may permit any civic groups or governmental
agencies temporary use of portions of the premises when such use would not interfere
with use by Lessee. Lessee may charge fees for such use to cover its costs.
4,3, Lessee shall not use or occupy, or permit or suffer all or any part of the
premises or the Improvements to be used or occupied (1) for any unlawful or illegal
business, use, or purpose, (2) in any such manner to constitute a nuisance of any
kind, or (3) for any purpose or in any way in violation of the certificate of occupancy,
or of any Legal Requirements, including but not limited to Legal Requirements
respecting Hazardous Substances. The term Hazardous Substance means any
hazardous, toxic, or dangerous substance, waste, or material that is the subject of
environmental protection Legal Requirements, including but not limited to the items
listed in the United States Department of Transportation Hazardous Materials Table (49
CFR {}172.101) or designated as hazardous substances by the United States
Environmental Protection Agency (40 CFR pt 302). Lessee acknowledges that the term
Legal Requirements includes but is not limited to all environmental protection laws
such as the Comprehensive Environmental Response, Compensation and Liability Act
(42 USC §6901 et seq.), the Federal Water Pollution Control Act (33 USC §6901 et
seq.), the Federal Water Pollution Control Act (33 USC §1257 et seq.), and the Clean
Air Act (42 USC §2001 et seq.).
4.4. Lessee shall observe and comply with all conditions and requirements
necessary to preserve and extend any and all rights, licenses, permits (including but
not limited to zoning variances, special exceptions, and nonconforming uses),
privileges, franchises, and concessions that now apply to the premises or that have
been granted to or contracted for by Lessor or Lessee in connection with any existing
or presently contemplated use of the premises or the Improvements.
5. Liens.
5.1. Lessee shall have no power to do any act or to make any contract that
may create or be the foundation for any lien, mortgage, or other encumbrance on the
reversion or other estate of Lessor or on any interest of Lessor in the premises.
5.2. Lessee shall not suffer or permit any liens to attach to the interest of
Lessee in all or any part the premises by reason of any work, labor, services, or
materials done for, or supplied to, or claimed to have been done for or supplied to,
Lessee or anyone occupying or holding an interest in all or any part of the
PAGE 3-LEASE {p:real\cornnwrk$.ls5)[November 8, 199§]
Improvements on the premises through or under Lessee. Except as provided in the
next sentence, if any such lien shall at any time be filed against the premises, Lessee
shall cause the same to be discharged of record within 60 days after the date of filing
the same, by either payment, deposit, or bond. Lessee shall have the right, after prior
written notice to Lessor, to contest by appropriate legal proceedings, diligently
conducted in good faith, in the name of Lessee or Lessor or both, without cost or
expense to Lessor, the validity or application of any lien.
5.3. Nothing in this lease shall be deemed to be, or be construed in any way as
constituting, the consent or request of Lessor, express or implied, by inference or
otherwise, to any person, firm, or corporation for the performance of any labor or the
furnishing of any materials for any construction, rebuilding, alteration, or repair of or to
the premises or to the Improvements, or as giving Lessee any right, power, or
authority to contract for or permit the rendering of any services or the furnishing of any
materials that might in any way give rise to the right to file any lien against Lessor's
interest in the premises or against Lessor's interest, if any, in the Improvements.
Lessee is not intended to be an agent of Lessor for the construction of Improvements
on the premises. Lessor shall have the right to post and keep posted at all reasonable
times on the premises and on the Improvements any notices that Lessor shall be
required to post for the protection of Lessor and of the premises and of the
Improvements from any such lien. The foregoing shall not be construed to diminish or
vitiate any rights of Lessee in this lease to construct, alter, or add to the
Improvements.
6. Taxes and Other Charges.
6.1. Lessee shall pay all real and personal property taxes assessed against the
premises, such payments to be made no later than November 15 of the year in which
the taxes become due and payable, and will submit a copy of the receipt for the taxes
to the City's Director of Finance.
6.2. Lessee shall promptly pay any charges for electricity and all other charges
for utilities which may be furnished to the premises at Lessee's order or consent.
Lessee shall install such utilities as may be required for the use to be made of the
premises.
7. Insurance.
7.1. Lessee, at Lessee's sole cost and expense, shall maintain, for the mutual
benefit of Lessee, and Lessor, casualty insurance covering loss or damage by fire,
and other risks as may be embraced within all-risk insurance insuring the full
replacement cost (excluding foundation and excavation cost) of the Improvements. If
all-risk insurance becomes unavailable, then Lessee shall insure the Improvements
with such coverage as is customary from time to time for comparable buildings in the
City of Ashland. The amount of such insurance policy shall be increased from time to
time as the full replacement cost of the Improvements increases.
PAGE 4-LEASE {p:real\comnwrks.ls5)[November 8, 1996]
In the event of any casualty damage to the Improvements, Lessor may make
proof of loss if Lessee fails to do so within 15 days of the casualty and after 10 days'
written notice from Lessor of its intent to do so. If the insurance proceeds (the
"Proceeds") of any insurance on the Improvements equal more than 10% of the
replacement cost of the Improvements, then all Proceeds shall be paid to the First
leasehold Mortgagee, if any, and if none then to a bank trust department (the
"Trustee") as trustee for the parties. The Trustee shall be selected by Lessee and
approved by Lessor, which approval shall not be unreasonably withheld or delayed. If
the Proceeds are less than such amount, then the Proceeds shall be delivered to
Lessee. Except as provided in section 8, Lessee shall promptly repair or replace the
damaged and destroyed Improvements in substantially the form on the date of the
casualty or in a manner reasonably satisfactory to Lessor. At Lessee's option, the
Trustee shall pay or reimburse Lessee from the Proceeds for the cost of repair,
restoration, or replacement on satisfactory proof of expenditure by Lessee, satisfactory
evidence of sufficient progress on the work, and satisfactory evidence of sufficient
funds available to complete restoration. The Trustee shall not be liable to the parties
except in the event of gross negligence or fraud. The Trustee shall be entitled to
deduct a customary and reasonable charge for its services.
7.2. Lessee, at its expense, shall maintain at all times during the Term of this
lease public liability insurance in respect of the premises and the conduct or operation
of its business, with Lessor as additional insured, with $500,000 minimum combined
single-limit coverage, or its equivalent. All casualty insurance policies shall include
contractual liability, severability of interest, and cross-liability endorsements. When
Lessee conducts demolition or excavation work, the exclusions now customarily
referred to as the X, C, and U exclusions shall be deleted from Lessee's liability
insurance. Lessee shall deliver to Lessor and any additional named insured such fully
paid-for policies or certificates of insurance, in a form satisfactory to Lessor, issued by
the insurance company or its authorized agent, at least 10 days before the
Commencement Date. Lessee shall procure and pay for renewals of such insurance
from time to time before the expiration, and Lessee shall deliver to Lessor and any
additional named insured such renewal policy or certificate at least 30 days before the
expiration of any existing policy. All insurance policies shall contain provisions whereby
(1) losses shall be payable despite the negligence of any person having an insurable
interest in the Improvements; (2) the Proceeds will be paid in accordance with the
terms of this lease; and (3) the policies cannot be cancelled or modified unless Lessor
and any additional named insured are given at least 20 days' prior written notice of
such cancellation or modification.
7.3. All insurance policies shall be written as primary policies and shall not be
contributing with or be in excess of the coverage that either Lessor or Lessee may
carry. All such insurance policies shall be issued in the name of Lessee, being
included in the insurance policy definition of who is an additional insured and shall be
primary to any insurance available to Lessor.
7.4. All policies of insurance shall be issued by good, responsible companies,
reasonably acceptable to Lessor and that are qualified to do business in the State of
PAGE 5-LEASE {p:real\comnwrks.lsS)[November 8, 1990]
Oregon. Certificates shall be delivered to Lessor within 30 days after the Building is
completed and thereafter within 30 days before the expiration of the term of each such
policy. As often as any such policy shall expire or terminate, renewal or additional
policies shall be procured and maintained by Lessee in like manner and to like extent.
All policies of insurance must contain a provision that the company writing the policy
will give Lessor 30 days' written notice in advance of any cancellation, substantial
change of coverage, or the effective date of any reduction in amount of insurance.
7.5. The obligations of Lessee to carry the insurance provided for may be
brought within the coverage of a so-called blanket policy or policies of insurance;
provided, however:
7.5.1. That the coverage afforded will not be reduced or diminished by
reason of the use of such blanket policy of insurance;
7.5.2. That the requirements set forth are otherwise satisfied; and
insured.
7.5.3. That, as to all insurance, Lessor shall be named as additional
7.6. Lessor may from time to time, but not more frequently than once every
three years, require that the amount of public liability insurance to be maintained by
Lessee under section 7.2 be increased so that the amount adequately protects
Lessor's interest based on Lessor's maximum liability for tort claims under ORS 30.270
or any successor statute.
8. Damage and Destruction
8.1. Partial Damage.
8.1.1. If the premises are partly damaged and the loss is an uninsured
loss, but not due to any fault of Lessee's in failing to maintain the insurance coverage
required under the terms of this lease, and Lessee reasonably determines that it does
not have sufficient available funds with which to rebuild or repair the damage to the
premises, then Lessee shall have the right to elect to terminate this lease by giving
written notice to Lessor of such election within 60 days of the occurrence of such loss.
If Lessee makes such election under this paragraph, then Lessor shall not be
obligated to rebuild the premises or required to use the premises only for those
purposes described in section 19.5.
8.1.2. If the premises are partly damaged, and neither section 8.1.1 nor
8.2 applies, the premises shall be repaired by Lessee at Lessee's expense.
8.2. Destruction. If the premises are destroyed or damaged such that the cost
of repair exceeds 50% of the value of the structure before the damage, Lessee may
elect to terminate the lease as of the date of the damage or destruction by notice
PAGE 6-LEASE (p:real\comnwrks.ls5)[November 8, 1996]
given to the Lessor in writing not more than 60 days following the date of damage. In
such event all rights and obligations of the parties shall cease as of the date of
termination. If Lessee elects to terminate, the insurance proceeds described in section
7.1 shall be paid to Lessor who shall use such proceeds to restore the premises to
substantially the same form as prior to the damage or destruction if the proceeds are
sufficient to make such restoration. If the proceeds are insufficient, Lessor shall use
them to restore the premises for other uses. If Lessee elects not to terminate, Lessee
shall proceed to restore the premises to substantially the same form as prior to the
damage or destruction. Work shall be commenced as soon as reasonably possible
and thereafter shall proceed without interruption except for work stoppages on
account of labor disputes and matters beyond Lessee's reasonable control.
9. Lessor's Right to Perform Lessee's Covenants.
9.1. If Lessee at any time fails to pay any tax in accordance with the provisions
of this lease or fails to make any other payment or perform any other act on its part to
be made or performed, then Lessor, after 10 days' notice to Lessee (or without notice
in case of an emergency) and without waiving or releasing Lessee from any obligation
of Lessee contained in this lease or from any default by Lessee and without waiving
Lessor's right to take such action as may be permissible under this lease as a result of
such default, may (but shall be under no obligation to):
9.1.1. Pay any tax payable by Lessee pursuant to the provisions of this
lease; or
9.1.2. Make any other payment or perform any other act on Lessee's
part to be made or performed as provided in this lease, and may enter the premises
and the Improvements for any such purpose, and take all such action, as may be
necessary.
9.2. All sums so paid by Lessor and all costs and expenses incurred by Lessor,
including reasonable attorney fees, in connection with the performance of any such
act, together with, if Lessee does not pay the same within the 30-day period after
notice from Lessor, interest from the date of such payment or incurrence by Lessor of
such cost and expense until paid, at the annual rate of 18% shall be paid by Lessee to
Lessor on demand.
10. Compliance with Legal Requirements.
10.1. Throughout the Term, Lessee shall promptly comply with all Legal
Requirements that may apply to the premises or to the use or manner of uses of the
premises or the Improvements or the owners or users of the Improvements, whether
or not the Legal Requirements affect the interior or exterior of the Improvements,
necessitate structural changes or improvements, or interfere with the use and
enjoyment of the premises or the Improvements, and whether or not compliance with
the Legal Requirements is required by reason of any condition, event, or circumstance
PAGE 7-LEASE (p:real\comnwrks.lsS)[November 8, 199§]
existing before or after the Term commences. Lessee shall pay all costs of compliance
with Legal Requirements, but Lessee shall have the right to cease occupation or use
of, or to demolish or remove, all or any part of the premises or the Improvements in
lieu of compliance with any Legal Requirement that may require expenditures on behalf
of Lessee for continued use or occupation of the premises.
10.2. Lessee shall have the right, after prior written notice to Lessor, to contest
by appropriate legal proceedings, diligently conducted in good faith, in the name of
Lessee or Lessor or both, without cost or expense to Lessor, the validity or application
of any Legal Requirement subject to the following:
10.2.1. If, by the terms of any Legal Requirement, compliance may
legally be delayed pending the prosecution of any such proceeding without the
incurrence of any lien, charge, or liability of any kind against all or any part of the
premises or the Improvements and without subjecting Lessee or Lessor to any liability,
civil or criminal, for failure to comply, Lessee may delay compliance until the final
determination of such proceeding; or
10.2.2. If any lien, charge, or civil liability would be incurred by reason of
any such delay, Lessee nevertheless may contest the matter and delay compliance,
provided that such delay would not subject Lessor to criminal liability or fine, and
Lessee
10.2.2.1. Furnishes to Lessor security, reasonably satisfactory to
Lessor, against any loss or injury by reason of such contest or delay, and
10.2.2.2. Prosecutes the contest with due diligence.
10.3. Lessor shall execute and deliver any appropriate papers that may be
necessary or proper to permit Lessee to contest the validity or application of any Legal
Requirement, provided all the requirements of this section have been satisfied by
Lessee and Lessor will incur no cost.
11. Repairs and Maintenance. Lessee shall maintain, repair, and replace the
premises and the Improvements as necessary to keep them in good order, condition,
and repair throughout the entire Term. Lessee's obligations shall extend to both
structural and nonstructural items and to all maintenance, repair, and replacement
work, including but not limited to unforeseen and extraordinary items. Lessor shall
maintain the common areas of the development in good order, condition, and repair
throughout the entire Term. Lessor shall be responsible for all aspects of maintaining
the parking area, including but not limited to security patrols, landscaping, cleaning,
snow and ice removal, and lighting.
12. Alterations, Additions, and New Improvements. The term Modifications means
any demolition, improvement, alteration, change, or addition, of, in, or to any exterior
portion of the Building or any portion of the premises or the Improvements visible from
PAGE 8-LEASE {p:real\comnwrks,lsS)[November 9, 1996]
the boundary lines of this lease. The term Minor Modifications shall mean any
Modifications costing less than $25,000, and the term Major Modifications shall mean
any and all Modifications other than Minor Modifications. Multiple Modifications
occurring within a period of 365 days shall be deemed a single Modification for the
purposes of applying the provisions contained in this section. At any time during the
Term and at Lessee's own cost and expense, Lessee may make or permit to be made
any Minor Modifications, provided there is no existing and unremedied default on the
part of Lessee, of which Lessee has received notice of default, under any of the terms,
covenants, and conditions of this lease. Major Modifications shall require the prior
consent of the Lessor, which consent shall not be unreasonably withheld. All salvage
material in connection with any Modification that Lessee is permitted to make shall
belong to Lessee.
13. Title to Improvements. Title to Improvements shall be and remain in Lessee until
the expiration of the Term, or any extension, unless this lease is terminated sooner as
provided elsewhere in this lease. Upon such expiration or sooner termination, title to
the Improvements shall automatically pass to, vest in, and belong to Lessor without
further action on the part of either party and without cost or charge to Lessor. During
the Term, Lessee shall be entitled for all taxation purposes to claim cost recovery
deductions and the like on the Improvements.
14. No Waste. Lessee shall not do or suffer any waste or damage, disfigurement, or
injury to the premises or the Improvements. Demolition of all or any part of the
Improvements done in accordance with the requirements of section 12 shall not be
considered prohibited by the terms of this section.
15. Inspection and Access
15.1. Lessee shall permit Lessor, or its authorized representative to enter the
premises and the Improvements at all reasonable times during usual business hours
for the purposes of inspecting the same for conformance to the permitted uses
specified in section 4 and for the purposes of inspecting for and making any repairs or
performing any work that Lessee has neglected or refused to make in accordance with
the terms, covenants, and conditions of this lease. Nothing in this lease shall imply any
duty or obligation on the part of Lessor to do any such work or to make any
Improvements of any kind whatsoever to the premises (including, but not limited to,
repairs and other restoration work made necessary due to any fire, other casualty, or
partial condemnation, irrespective of the sufficiency or availability of any fire or other
insurance proceeds, or any award in condemnation, which may be payable). The
performance of any work by Lessor shall not constitute a waiver of Lessee's default in
failing to perform the same.
15.2. Except in the event of emergency repairs, all entry to the premises by
Lessor shall require at least 24 hours' advance notice to Lessee. In the event of any
emergency repairs, Lessor shall use reasonable efforts to give Lessee the earliest
possible notice of the same.
PAGE 9-LEASE {p:real\cornnwrks.lsS}[November 8, 1996]
16. Lessor's Exculpation and Indemnity
16.1. Lessee is and shall be in exclusive control of the premises and of the
Improvements, and Lessor shall not in any event whatsoever be liable for any injury or
damage to any property or to any person happening on, in, or about the premises or
the Improvements or any injury or damage to the premises or the Improvements or to
any property, whether belonging to Lessee or to any other person, caused by any fire,
breakage, leakage, defect, or bad condition in any part or portion of the premises or
of the Improvements, or from steam, gas, electricity, water, rain, or snow that may leak
into, issue, or flow from any part of the premises or the Improvements from the drains,
pipes, or plumbing work of the same, or from the street, subsurface, or any place or
quarter, or due to the use, misuse, or abuse of all or any of the Improvements or from
any kind of injury that may arise from any other cause whatsoever on the premises or
in or on the Improvements, including defects in construction of the Improvements,
latent or otherwise.
16.2. Lessee shall defend, indemnify and save Lessor, its officers, employees
and agents harmless from any and all losses, claims, actions, costs, expenses,
judgments, subrogations, or other damages resulting from injury to any person
(including injury resulting in death,) or damage (including loss or destruction) to
property, of whatsoever nature arising that may be imposed on or incurred by or
asserted against Lessor by reason of any of the following occurrences during the
Term:
16.2.1. Any work or thing done in, on, or about all or any part of the
premises or the Improvements by Lessee or any party other than Lessor;
16.2.2. Any use, nonuse, possession, occupation, condition, operation,
maintenance, or management of all or any part of the premises or the Improvements;
16.2.3. Any negligence on the part of Lessee or any of its agents,
contractors, servants, employees, sublessees, licensees, or invitees;
16.2.4. Any accident, injury, or damage to any person or property
occurring in, on, or about the premises or the Improvements; or
16.2.5. Any failure on the part of Lessee to perform or comply with any
of the covenants, agreements, terms, provisions, conditions, or limitations contained in
this lease on its part to be performed or complied with.
16.3. In case any action or proceeding is brought against Lessor by reason of
any such claim, Lessee upon written notice from Lessor shall, at Lessee's expense,
resist or defend such action or proceeding by counsel approved by Lessor in writing,
which approval shall not be unreasonably withheld. Lessor shall not make any claim
against Lessee with respect to any of such risks as to which Lessee has furnished
PAGE 10-LEASE (p:real\cornnwrks.lsS)[November 8. 1996]
Lessor with insurance policies or certificates of insurance evidencing coverage of such
risks unless and until the insurer fails or refuses to defend and/or pay all or any part
of a third-party claim.
17. Assignment and Subletting
17.1. Except as provided in section 17.2, Lessee shall not sell, assign, or in any
other manner transfer this lease or any interest in this lease or the estate of Lessee
under this lease without the prior consent of Lessor, which consent shall not be
unreasonably withheld or delayed. Lessor may base its consent on the ability of the
prospective assignee to fulfill the purposes of this lease as described in section 4.
17.2. Lessee shall have the right to sublet portions of the premises and/or of
the Improvements at any time and from time to time, but only for a term or terms that
shall expire before the expiration of the Term, and provided that each such sublease
shall be in writing, shall be for the uses described in section 4 and shall be subject
and subordinate to the rights of Lessor under this lease.
18. Default; Remedies
18.1. The occurrence of any one or more of the following events of default
constitutes a breach of this lease by Lessee:
18.1.1. If Lessee defaults in the payment of any sum due and payable by
Lessee, and such default continues for 30 days after Lessor has given Lessee a notice
specifying the same; or
18.1.2. If Lessee, whether by action or inaction, is in default of any of its
obligations under this lease (other than a default in the payment of any sum due
Lessor) and such default continues and is not remedied within 60 days after Lessor
has given Lessee a notice specifying the same, or, in the case of a default that can be
cured but not within a period of 60 days, if Lessee has not (1) commenced curing
such default within such 60-day period; (2) notified Lessor of Lessee's intention to
cure the default; or (3) continuously and diligently completed the cure of the default.
18.2. Upon the occurrence of an event of default, Lessor may exercise any one
or more of the remedies set forth in this section or any other remedy available under
applicable law or contained in this lease:
18.2.1. Lessor or Lessor's agents and employees may immediately or at
any time thereafter reenter the premises either by summary eviction proceedings or by
any suitable action or proceeding at law. If Lessor retakes possession under this
paragraph, Lessor shall use the premises for the purposes stated in section 19.5
unless such purposes are no longer viable. The provisions of the preceding sentence
shall survive any termination of this lease.
PAGE 11-LEASE [p:real\cornnwrks.ls5)[November 8. 1996]
18.2.2. Lessor may relet the whole or any part of the premises from time
to time, either in the name of Lessor or otherwise, to such Lessees, for such terms
ending before, on, or after the expiration date of the lease Term, at such rentals and
on such other conditions (including concessions and free rent) as Lessor may
determine to be appropriate. To the extent allowed under Oregon law, Lessor shall
have no obligation to relet all or any part of the premises and shall not be liable for
refusal to relet the premises, or, in the event of such reletting, for refusal or failure to
collect any rent due on such reletting; and any action of Lessor shall not operate to
relieve Lessee of any liability under this lease or otherwise affect such liability. Lessor
at its option may make such physical changes to the premises as Lessor, in its sole
discretion, considers advisable and necessary in connection with any such reletting or
proposed reletting, without relieving Lessee of any liability under this lease or
otherwise affecting Lessee's liability. Any reletting shall be for the purposes described
in section 19.5 unless such purposes are no longer viable.
18.2.3. Whether or not Lessor retakes possession or relets the premises,
Lessor has the right to recover its damages, including without limitation all lost rentals,
all legal expenses, all costs incurred by Lessor in restoring the premises or otherwise
preparing the premises for reletting, and all costs incurred by Lessor in reletting the
premises.
18.2.4. To the extent permitted under Oregon law, Lessor may sue
periodically for damages as they accrue without barring a later action for further
damages.
18.3. No failure by Lessor to insist on the strict performance of any agreement,
term, covenant, or condition of this lease or to exercise any right or remedy
consequent upon a breach, constitutes a waiver of any such breach or of such
agreement, term, covenant, or condition. No agreement, term, covenant, or condition
to be performed or complied with by Lessee, and no breach by Lessee, shall be
waived, altered, or modified except by a written instrument executed by Lessor. No
waiver of any breach shall affect or alter this lease, but each and every agreement,
term, covenant, and condition of this lease shall continue in full force and effect with
respect to any other then-existing or subsequent breach.
18.4. Each right and remedy provided for in this lease shall be cumulative and
shall be in addition to every other right or remedy provided for in this lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Lessor or Lessee of any one or more of the rights or
remedies provided for in this lease or now or hereafter existing at law or in equity or
by statute or otherwise shall not preclude the simultaneous or later exercise by the
party in question of any or all other rights or remedies provided for in this lease or
now or hereafter existing at law or in equity or by statute or otherwise.
19. Extension of Term. If the lease is not then in default, Lessee, upon consent of the
Lessor as provided in section 19.4, shall have the option to renew this lease for three
successive terms of 5 years each, as follows:
PAGE 12-LEASE (p:real\comnwrks.lsS)[November 8, 1996]
19,1. The renewal term shall commence on the day following the date of
termination of the preceding term.
19.2, The terms and conditions for each five year renewal term shall be on the
same terms and conditions as provided in this lease for the initial Term unless
otherwise agreed by the parties. Payment of all additional charges required to be
made by Lessee as provided in this lease for the initial Term shall continue to be made
during the extended Term.
19.3. The option may be exercised by written notice to Lessor given not less
than 120 days prior to the last day of the expiring term. The written notice shall include
a copy of this section 19.
19.3.1. Within 30 days of the notice, Lessor and Lessee shall meet to
review and evaluate the terms and purposes of this lease and the performance
under the lease by Lessee.
19.3.2. Lessee and Lessor shall fully cooperate with each other in the
review and evaluation.
19.4, Lessor may refuse to consent to the extension only if it finds after
diligently conducting the review and evaluation in good faith that Lessee is not
adequately fulfilling the terms and purposes of this lease.
19.5. If Lessor does not consent to an extension, then at the termination of the
lease, Lessor agrees to use the premises for the purposes described in section 4.1 or
any program activities similar in nature unless such purposes are no longer viable. The
provisions of the preceding sentence shall survive any termination of this lease.
20. Quiet Enjoyment. Lessee, on observing and keeping all covenants, agreements,
and conditions of this lease on its part to be kept, shall quietly have and enjoy the
premises during the Term without hindrance by anyone claiming by, through, or under
Lessor as such, subject, however, to the exceptions, reservations, and conditions of
this lease.
21. Surrender.
21.1. Except as otherwise provided, Lessee, on the last day of the Term, shall
surrender and deliver up the premises and all Improvements to the possession and
use of Lessor without fraud or delay, free and clear of all lettings and occupancies,
and free and clear of all liens and encumbrances other than those, if any, presently
existing or created or suffered by Lessor, without any payment or allowance whatever
by Lessor on account of any Improvements on the premises. Upon surrender by
Lessee, Lessor shall use the premises for the purposes described in section 19.5
unless such purposes are no longer viable.
PAGE 13-LEASE (p:real\comnwrks.lsS)[November 8, 1996]
21.2. When furnished by or at the expense of Lessee or any sublessee,
furniture, fixtures, and equipment may be removed by Lessee at or before this lease
terminates, provided, however, that the removal will not injure the premises or the
Improvements or necessitate changes in or repairs to the same. Lessee shall pay or
cause to be paid to Lessor the cost of repairing any damage arising from such
removal and restoration of the premises and/or the Improvements to their condition
before such removal.
21.3. Any personal property of Lessee or any sublessee that shall remain on
the premises after the termination of this lease and the removal of Lessee or such
sublessee from the premises maybe disposed of by Lessor, after written notice, stating
that the property is considered abandoned and must be removed from the premises
or from a place of safekeeping, if the Lessor has stored the property elsewhere, by a
specified day not less than 15 days after delivery of the notice. If the property is not
removed by the Lessee within such time, it may either be retained by Lessor as its
property or be disposed of, without accountability, in such manner as Lessor may see
fit. If this lease terminates early for any reason other than the default of Lessee then,
anything to the contrary notwithstanding, Lessee or any sublessee shall have a
reasonable time thereafter to remove its personal property.
21.4. Lessor shall not be responsible for any loss or damage occurring to any
property owned by Lessee or any sublessee unless the loss was caused by Lessor's
deliberate or negligent act.
21.5. The provisions of this section shall survive any termination of this lease.
22. Invalidity of Particular Provisions. If any term or provision of this lease or the
application of the lease to any person or circumstances is, to any extent, invalid or
unenforceable, the remainder of this lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected, and each term and provision of this lease shall be
valid and be enforced to the fullest extent permitted by law.
23. No Representations. Lessee acknowledges that it has examined the premises
and that no representations as to the condition of the premises have been made by
Lessor or any agent or person acting for Lessor (except as expressly provided in this
lease). Before any construction commences on the premises, Lessee shall conduct
tests of the subsurface and soil conditions to ascertain the suitability of the premises
for the contemplated Project and shall furnish such fill and take such other steps as
may be required before the commencement of construction. Lessor shall have no
liability because of, or as a result of, the existence of any subsurface or soil condition,
either on the premises or on adjacent land, that might affect Lessee's construction.
24. Estoppel Certificate. Either party, within 10 days after a request from time to time
made by the other party and without charge, shall give a certification in writing to any
person, firm, or corporation reasonably specified by the requesting party stating (1)
PAGE 14-LEASE (p:real\comnwrks.lsS)[November 8, 1996]
that this lease is then in full force and effect and unmodified, or if modified, stating the
modifications; (2) that Lessee is not in default in the payment of any sums due to
Lessor, or if in default, stating such default; (3) that as far as the maker of the
certificate knows, neither party is in default in the performance or observance of any
other covenant or condition to be performed or observed under this lease, or if either
party is in default, stating such default; (4) that as far as the maker (if Lessor) of the
certificate knows, no event has occurred that authorized, or with the lapse of time will
authorize, Lessee to terminate this lease, or if such event has occurred, stating such
event; (5) that as far as the maker of the certificate knows, neither party has any
offsets, counterclaims, or defenses, or, if so, stating them; and (6) any other matters
that may be reasonably requested by the requesting party.
25. Notices.
25.1. Any notice required or permitted by the terms of this lease shall be
deemed given if delivered personally to an officer of the party to be notified or sent by
United States registered or certified mail, postage prepaid, return-receipt requested,
and addressed as follows:
If to Lessor:
City Administrator If to Lessee: Executive Director
City of Ashland Community Works
20 East Main Street 900 East Main Street
Ashland, Oregon 97520 Medford, Oregon 97504
or such other addresses as may be designated by either party by written notice to the
other. Except as otherwise provided in this lease, every notice, demand, request, or
other communication shall be deemed to have been given or served on actual receipt
or, if mailed, three days after the date of mailing.
25.2. Notwithstanding anything in this section to the contrary, any notice mailed
to the last designated address of any person or party to which a notice may be or is
required to be delivered pursuant to this lease or this section shall not be deemed
ineffective if actual delivery cannot be made due to a change of address of the person
or party to which the notice is directed or the failure or refusal of such person or party
to accept delivery of the notice.
26. Costs and Attorney Fees. If either party brings an action to recover any sum due
or for any breach and obtains a judgment or decree in its favor, the court may award
to such prevailing party its reasonable costs and reasonable attorney fees, specifically
including reasonable attorney fees incurred in connection with any appeals (whether or
not taxable as such by law).
27. Entire Agreement. This lease contains the entire agreement between the parties
and, except as otherwise provided, can be changed, modified, amended, or
terminated only by an instrument in writing executed by the parties. It is mutually
PAGE 15-LEASE (p:real\comnwrks.ls5)[November 8, 1996]
acknowledged and agreed by Lessee and Lessor that there are no verbal agreements,
representations, warranties, or other understandings affecting this lease.
Lessor: City of Ashland, Oregon
"~lay¢'. / *' -"--
Cify Recorder
Lessee: Community
Its ~i l [ ~~,
PAGE 16-LEASE (p:real\comnwrks.lsS)[November 8, 1996]
CITY OF ASHLAND
DEPARTMENT OF PUBLIC WORKS
ADMINISTRATION: (503) 488-5587
ENGINEERING: (503) 488-5347
EXHIBIT 'A'
LAND
DESCRIPTION
CITY HALL
20 E. MAIN STREET
ASHLAND, OREGON 97520-1814
FAX (503) 488-6006
Commencing at the centerline intersection of East Main and
Garfield Streets, from which the Southeast corner of Donation Land
Claim No. 43, Township 39 South, Range 1 East of the Willamette
Base and Meridian, Jackson County, Oregon bears South 00 degrees
02 minutes 26 seconds West for a distance of 147.355 feet and
North 89 degrees 59 minutes 41 seconds East for a distance of
965.13 feet therefrom;
THENCE South 78 degrees 02 minutes 41 seconds West along the
centerline of East Main Street for a distance of 5.00 feet to a
iron pipe and bronze disk in a monument case;
THENCE leaving said centerline, North 03 degrees 46 minutes
11 seconds West for a distance of 30.31 feet to a point in the
Northeasterly right of way line of East Main Street for the TRUE
POINT OF BEGINNING;
THENCE South 78 degrees 02 minutes 41 seconds West along the
Northeasterly right of way line of East Main Street for a distance
of 163.00 feet;
THENCE leaving said right of way line, North 00 degrees 07
minutes 22 seconds East for a distance of 107.05 feet;
THENCE South 89 degrees 34 minutes 41 seconds East for a
distance of 186.32 feet;
THENCE South 05 degrees 10 minutes 19 seconds West for a
distance of 66.71 feet to a point in the Northeasterly right of
way line of East Main Street;
THENCE South 75 degrees 25 minutes 49 seconds West along said
Northeasterly right of way line for a distance of 21.77 feet to
the point of beginning.
TOGETHER with and subject to covenants, easements, and
restrictions of record and those apparent on the land.
Said property contains 15,932 square feet, more or less.
GRANTOR:
City of Ashland ~ PROFE$S~ONA[
· ~ k NO SURVEY
20 East Main Street .[,,.b~,~.,..~¢?~J
. JULf e. 1~66
October 1, 1996
ref: C96T23A.leg
Surveyor's Registration
Renewal Date: June 30, 1998
EXHIBIT 'A'