HomeMy WebLinkAbout1996-077 Lease - Ashland Sanitary
RECYCLING CENTER LEASE
Date: January 1, 1996
Lessor: City of Ashland, 20 East Main Street, Ashland, Oregon ("City")
Lessee: Ashland Sanitary Service, Inc. ("Lessee")
Recitals:
A. Lessee has been granted a franchise by City for the collection of solid waste. As a
part of its franchise, Lessee also operates recycling programs for city residents.
B. Lessee is currently using the premises owned by City and described below for a
recycling center. The use by Lessee has never been formalized between Lessee and
City and the parties intend by this lease to formalize their agreement for use of the
premises.
City and Lessee agree as follows:
1. Description of Premises. City leases to Lessee, and Lessee leases from City, the
real property (the "premises") described on Exhibit A attached and incorporated in this
lease by this reference.
2. Term. The premises are leased for a term (the "term") commencing on the date of
this lease and expiring at such time as the Lessee is no longer the franchisee for solid
waste collection in the City or upon termination as provided section 17.
3. Recycling Center.
3.1. Lessee has previously constructed or placed buildings (the "buildings") and
related improvements on, under, and over the premises. The buildings and all the
related improvements are referred to in this lease as the "Recycling Center." The
Recycling Center and any future alterations, additions, replacements, or modifications
to the Recycling Center during the term of this lease are referred to in this lease as the
"improvements. "
3.2. Lessee shall construct any additional improvements to the Recycling Center
in accordance with the final plans and specifications approved by City, which approval
shall not be unreasonably withheld or delayed.
4. Rent. No rent shall be payable with respect to the premises.
5. Use.
5.1. Lessee shall use and occupy the premises continuously during the term for
the operation of a recycling center to collect material for recycling or reuse authorized
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under City's or Lessee's recycling programs. The premises may not be used for any
other purpose without the written consent of Lessee, which consent shall not be
unreasonably withheld. Lessee shall open its business to the public during the
following days and hours: 9:00 a.m. to 5:00 p.m., Wednesday through Sunday or at
such other days and hours as the parties may agree. Lessee's business may be
closed on holidays. City 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
buildings, in order to ensure that City may control the quality and character of the
presentation displayed by Lessee. Such approval may be withheld or revoked if City
in good faith believes such display or plan is unsatisfactory or inappropriate for the
development.
5.2. 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 9172.101) 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
96901 et seq.), the Federal Water Pollution Control Act (33 USC 96901 et seq.), the
Federal Water Pollution Control Act (33 USC 91257 et seq.), and the Clean Air Act (42
USC 92001 et seq.).
5.3. 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 City or Lessee in connection with any existing or
presently contemplated use of the premises or the improvements.
5.4. Lessee shall permit City use of the premises for the purposes of
conducting educational classes for citizens regarding city's recycling programs. City's
use of the property for this purpose will be at such times and dates as mutually
agreed by the parties.
5.5. Nothing contained in this lease shall be construed as providing for the
creation of a public way, city street or public forum on the premises. For such
purposes the parties agree the premises are to be regarded as a private place and
Lessee is under no obligation to allow use of the premises for the circulation of
initiative petitions or for any other purpose except as expressly provided for in this
lease.
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6. Liens
6.1. 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 City or on any interest of City in the premises.
6.2. 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
improvements on the premises through or under Lessee. If any such lien shall at any
time be filed against the premises, Lessee shall cause the same to be discharged of
record within 30 days after the date of filing the same, by either payment, deposit, or
bond.
6.3. Nothing in this lease shall be deemed to be, or be construed in any way as
constituting, the consent or request of City, 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 City's
interest in the premises or against City's interest, if any, in the improvements. Lessee
is not intended to be an agent of City for the construction of improvements on the
premises. City shall have the right to post and keep posted at all reasonable times on
the premises and on the improvements any notices that City shall be required to post
for the protection of City 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.
7. Taxes; Utilities.
7.1. Property Taxes. Lessee shall pay as due all taxes on its personal
property located on the premises. City shall pay as due any real property taxes and
special assessments levied against the premises.
7.2. Payment of Utilities Charges. Tenant shall pay when due all charges for
services and utilities incurred in connection with the use, occupancy, operation, and
maintenance of the premises, including (but not limited to) charges for fuel, water, gas,
electricity, sewage disposal, power, refrigeration, air conditioning and telephone.
8. Insurance.
8.1. Lessee shall, at its own expense, at all times during the term of this lease,
maintain in force a comprehensive general liability policy including coverage for
contractual liability for obligations assumed under this agreement, blanket contractual
liability, products and completed operations, owner's and contractor's protective
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insurance and comprehensive automobile liability including owned and non-owned
automobiles. The liability under each policy shall be a minimum of $500,000 per
occurrence (combined single limit for bodily injury and property damage claims) or
$500,000 per occurrence for bodily injury and $100,000 per occurrence for property
damage. Liability coverage shall be provided on an "occurrence" not "claims" basis.
The City of Ashland, its officers, employees and agents shall be named as additional
insureds. Certificates of insurance acceptable to the City shall be filed with City's Risk
Manager prior to the commencement of any services by Contractor under this
agreement. These certificates shall contain provision that coverages afforded under
the policies can not be canceled and restrictive modifications cannot be made until at
least 30 days prior written notice has been given to City. A certificate which states
merely that the issuing company "will endeavor to mail" written notice is unacceptable.
8.2. Lessee may, but is not required to, keep the premises insured at Lessee's
expense against flood and other risks covered by a standard flood insurance policy.
Lessee shall make available the proceeds of any such insurance first for the
restoration of the improvements on the premises. Neither party shall be liable to the
other (or to the other's successors or assigns) for any loss or damage caused by any
of the risks enumerated in a standard flood insurance policy with an extended
coverage endorsement, and in the event of insured loss, neither party's insurance
company shall have a subrogated claim against the other. This waiver shall be valid
only if the insurance policy in question expressly permits waiver of subrogation or if
the insurance company agrees in writing that such a waiver will not affect coverage
under the policies. Each party agrees to use best efforts to obtain such an agreement
from its insurer if the policy does not expressly permit a waiver of subrogation.
9. Compliance with Legal Requirements.
9.1. 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
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.
9.2. Lessee shall have the right, after prior written notice to City, to contest by
appropriate legal proceedings, diligently conducted in good faith, in the name of
Lessee or City or both, without cost or expense to City, the validity or application of
any legal requirement subject to the following:
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9.2.1. 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 City to any liability, civil or criminal, for
failure to comply, Lessee may delay compliance until the final determination of such
proceeding; or
9.2.2. 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 City to criminal liability or fine, and Lessee
9.2.2.1. Furnishes to City security, reasonably satisfactory to City,
against any loss or injury by reason of such contest or delay, and
9.2.2.2. Prosecutes the contest with due diligence.
9.3. City 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 City will incur no cost.
10. Repairs and Maintenance.
10.1. Except as otherwise specifically provided in this lease, 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.
10.2. City shall maintain, repair, and replace the asphalt driveway and the
cyclone fence on the premises to keep such in good order, condition, and repair
throughout the entire term.
11. Alterations, Additions, and New improvements. The term modifications means
any demolition, improvement, alteration, change, or addition, of, in, or to all or any part
of the premises or the improvements. The term minor modifications shall mean any
modifications costing less than $5,000, 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 un remedied 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 City. All salvage material in connection with any modification that
Lessee is permitted to make shall belong to Lessee.
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12. Title to Improvements. Title to improvements shall be and remain in Lessee until
the expiration of the term, unless this lease is terminated sooner as provided. Upon
such expiration or sooner termination, the parties shall mutually determine the
disposition of the improvements and the value to be paid by City if the improvements
remain on the premises. During the term, Lessee shall be entitled for all taxation
purposes to claim cost recovery deductions and the like on the improvements.
13. 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 11 shall not be
considered prohibited by the terms of this section.
14. Inspection and Access.
14.1. Lessee shall permit City 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 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 City 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 City shall not constitute a waiver of Lessee's default in
failing to perform the same.
14.2. During the progress of any work on the premises or the improvements
performed by City pursuant to the provisions in this section, City may keep and store
on the premises all necessary materials, tools, supplies, and equipment. City shall not
be liable for inconvenience, annoyance, disturbance, loss of business, or other
damage of Lessee or any user by reason of making such repairs or performing any
such work, or on account of bringing materials, tools, supplies, and equipment onto
the premises or into the improvements during the course of the work and the
obligations of Lessee under this lease shall not be affected by the work.
14.3. City shall have the right to enter on the premises and the improvements at
all reasonable times during usual business hours for the purpose of showing the same
to prospective purchasers of City's interest and, at any time within two years before
the term expires, for the purpose of showing the same to prospective Lessees.
14.4. Except in the event of emergency repairs, all entry to the premises by
City shall require at least 24 hours' advance notice to Lessee. In the event of any
emergency repairs, City shall use reasonable efforts to give Lessee the earliest
possible notice of the same.
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15. City's Exculpation and Indemnity.
15.1. Lessee is and shall be in exclusive control of the premises and of the
improvements, and City 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.
15.2. Lessee agrees to defend, indemnify and save City, 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 out of or incident to the performance of this
agreement by Lessee (including but not limited to, Lessee's employees, agents, and
others designated by Lessee to perform work or services attendant to this agreement).
Lessee shall not be held responsible for damages caused by the negligence of City.
15.3. During those times City is using the premises as provided in section 5.4,
City shall defend, indemnify and save Lessee, 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 out of or incident to City's use of the premises. City shall
not be held responsible for damages caused by the negligence of Lessee, however.
16. Assignment and Subletting. 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 City, which consent shall not be unreasonably withheld or
delayed.
17. Default; Remedies.
17.1. The occurrence of anyone or more of the following events of default
constitutes a breach of this lease by Lessee:
17.1.1. If Lessee, whether by action or inaction, is in default of any of its
obligations under this lease and such default continues and is not remedied within 30
days after City 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 30 days, if Lessee has not (1)
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commenced curing such default within such 30-day period; (2) notified City of
Lessee's intention to cure the default; or (3) continuously and diligently completed the
cure of the default.
17.1.2. During any 12-month period, Lessee shall be entitled to only two
notices pursuant to section 17.1.1.
17.2. Upon the occurrence of an event of default, City may exercise anyone
or more of the remedies set forth in this section or any other remedy available under
applicable law or contained in this lease:
17.2.1. City or City'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, or by force or otherwise, without being liable to
indictment, prosecution, or damages, and may repossess the same, and may remove
any person from the premises, to the end that City may have, hold, and enjoy the
premises.
17.2.2. City may relet the whole or any part of the premises from time to
time, either in the name of City 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 City may determine to be
appropriate. To the extent allowed under Oregon law, City 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 City shall not operate to relieve Lessee of any
liability under this lease or otherwise affect such liability. City at its option may make
such physical changes to the premises as City, 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.
17.3. Whether or not City retakes possession or relets the premises, City has
the right to recover its damages, including without limitation all lost rentals, all legal
expenses, all costs incurred by City in restoring the premises or otherwise preparing
the premises for reletting, and all costs incurred by City in reletting the premises.
17.4. To the extent permitted under Oregon law, City may sue periodically for
damages as they accrue without barring a later action for further damages. City may
in one action recover accrued damages plus damages attributable to the remaining
lease term equal to the difference between the Rent reserved in this lease for the
balance of the lease term after the time of award, and the fair rental value of the
premises for the same period, discounted at the time of award at a reasonable rate
not to exceed 10% per annum. If City has relet the premises for the period that
otherwise would have constituted all or part of the unexpired portion of the term, the
amount of rent reserved on such reletting shall be deemed, prima facie, to be the fair
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and reasonable rental value for the part or the whole of the premises so relet during
the term of the reletting.
17.5. No failure by City 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, and no acceptance of full or partial Rent during the
continuance of any such 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 City. 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.
17.6. 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 City or Lessee of anyone 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.
18. Surrender
18.1. 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 City without fraud or delay, free and clear of all lettings and occupancies other
than subleases then terminable at the option of City or subleases to which City shall
have specifically consented, and free and clear of all liens and encumbrances other
than those, if any, presently existing or created or suffered by City, without any
payment or allowance whatever by City on account of any improvements on the
premises.
18.2. 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 payor
cause to be paid to City 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.
18.3. 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 may, at the option of City, be deemed to have been
abandoned by Lessee or such sublessee and may either be retained by City as its
property or be disposed of, without accountability, in such manner as City may see fit,
PAGE 9-RECYCLlNG CENTER LEASE (p:real\ass.lse)
or if City gives written notice to Lessee to such effect, such property shall be removed
by Lessee at Lessee's sole cost and expense. 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.
18.4. City shall not be responsible for any loss or damage occurring to any
property owned by Lessee or any sublessee, unless caused by City's negligence.
18.5. The provisions of this section shall survive any termination of this lease.
19. 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
City or any agent or person acting for City (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 Recycling Center and shall furnish such fill and take such other steps as
may be required before the commencement of construction. City 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.
20. 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).
21. 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
acknowledged and agreed by Lessee and City that there are no verbal agreements,
representations, warranties, or other understandings affecting this lease.
/'
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