HomeMy WebLinkAbout2004-229 Lease Agrmt - Rosewood
REAL PROPERTY LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into by and between ROANNA ROSEWOOD and MARC
ROSEWOOD (hereinafter referred to collectively as "Lessor") and The City of Ashland (hereinafter referred to
collectively as "Lessee").
IN CONSIDERATION OF the mutual promises set forth herein, the parties agree as follows:
1. Definitions. In this Agreement, the following terms shall have the indicated meanings:
(a) "Real Property" shall refer to the real property commonly known as 85 Winburn Way,
Ashland, Oregon, which property is more particularly described on Exhibit "A" attached hereto.
(b) "Leased Property" shall refer to: (i) the building presently constructed on the Real
Property, together with (ii) any additions and improvements to that building which are constructed or attached by
Lessee.
(c) "Hazardous Materials" shall refer to and include: (i) any and all substances defmed as
"hazardous substances" , "hazardous materials", or "toxic substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 USC Section 9601, et. seq.), the Hazardous
Materials Transportation Act (49 USC Section 1801, et. seq.), and the Resource Conservation and Recovery Act (42
USC Section 6901, et. seq.); and (ii) any and all substances which now or in the future are deemed to be pollutants,
toxic materials or hazardous materials under any other state or federal law.
(d) "Lease" shall mean and refer to the lease arrangement between Lessor and Lessee which
is established under this Agreement.
(e) "Lease Term" shall refer to the entire term of the lease, including any extensions. "Lease
Month" shall refer to the 20th day of a month to the 19th day of the following month. "Lease Ye3.r" shall refer to
the successive 12-month periods during the Lease Term which begin on March 20 and end on March 19. "Lease
Commencement Date" shall refer to the date when the parties execute this lease.
(f) The Initial "Base Rental Amount" shall be $1500. The "Adjusted Base Rental
Amount" shall be the amount determined pursuant to subparagraph 4(b).
2. Lease. Lessor hereby leases the Leased Property to Lessee, and Lessee leases the Leased
Property from Lessor, subject to all of the terms and conditions contained in this Agreement. Lessor shall retain
title to the Leased Property, and Lessee shall have the right only to possess the Leased Property during the term of
the Lease.
3. Lease Term. The term of the Lease shall commence on the Lease Commencement Date, and
Lessee shall be given possession of the Leased Property on that date. The term of the Lease shall terminate on April
20,2006, unless sooner terminated as provided in this Agreement.
4. Rental Payments ReQuired.
(a) On the Lease Commencement Date, Lessee shall be obligated to pay to Lessor: (i) the
sum of$_1500.00_to cover the monthly rental amount for the fIrst month after the Rent Commencement Date
(b) During the period beginning on the Lease Commencement Date and ending on April 19,
2006, Lessee shall pay to Lessor a monthly rental fIgure of$_1500.00 (the "Initial Base Rental Amount").
( c) All amounts of monthly rent payable under this Agreement shall be paid in advance on
the 20th day of each calendar month, by direct deposit into Lessor's account No. 110064453 at Umpqua Bank, or at
such other address or place Lessor may specify in writing from time to time.
(d) Lessee agrees that all amounts which Lessee is required to pay under this Agreement
(including but n ot limited to taxes, utility costs, insurance premiums and maintenance expenses) shall be payable as
additional rent, and shall be paid promptly when due.
(e) If Lessee fails to pay any installment of rent or other payment required hereunder
(including but not limited to taxes, utility costs, insurance premiums and maintenance expenses) within five (5) days
after the date when due, then Lessee shall be obligated to pay to Lessor as additional rent a late fi~e equal to five
percent (5%) of the past-due amount, together with interest on the past-due amount from the due date of the past-due
amount to the date of payment at the rate of twelve percent (12%) per annum. The provisions ofthls subparagraph
(j) shall not limit Lessor's right to treat any late payment as an event of default as provided in Paragraph 21.
5. Utilities. Lessee shall be responsible for and shall pay the cost of all water, electricity, natural
gas, heating oil, telephone service, refuse collection, sewage and other utilities and services provided to the Leased
Property, or used on or in connection with the Leased Property, during the Lease Term. Lessee agrees that it shall
not install any equipment which will exceed or overload the capacity of the existing utility facilities supplying the
Leased Property. If any equipment installed by Lessee shall require additional utility facilities, those additional
facilities shall be installed at Lessee's expense in accordance with plans and specifIcations approved in advance and
in writing by Lessor (with Lessor having the right to refuse to consent to any installation which Lessor believes to be
unreasonable). If, during the Lease Term, Lessor shall construct additional improvements on those portions of the
Real Property which are not included within the Leased Property, then Lessor shall cause all utilities provided to
those new improvements to be metered separately from the Leased Property (unless it is not possible, for reasons
beyond Lessor's control, to cause one or more utilities to be separately metered, in which case the cost of the shared
utility(ies) shall be allocated equitably between Lessor and Lessee based on relative usage).
6. Taxes On Personal Property. Lessee shall pay all personal property taxes and other taxes and
charges which are levied on or assessed against personal property leasehold improvements, fixtures, equipment,
furniture, inventories, merchandise and any other personal property installed or located on the Leased Property
during the Lease Term (including all personal property furnished by Lessor to Lessee as identified on the attached
Equipment List), as those taxes become due and payable, and before delinquency, and regardless of whether such
levy or assessment is made against Lessee or against Lessor, and regardless of whether the property has been
installed by Lessee or by Lessor. Lessee shall make all personal property tax payments directly to the taxing
authorities. If any personal property tax, assessment or charge is permitted by a taxing authori~y to be paid in
installments, Lessee may elect to do so as long as each installment (together with any interest charged) is paid before
it becomes delinquent, and provided that Lessee only shall be obligated to pay those installments due and payable
during the Lease Term. Lessee may contest in good faith the validity or amount of any tax, assessml~nt or charge in
accordance with the procedures established by applicable statute or administrative rule, as long as the Leased
Property is not subjected to any lien as a result of the contest. Lessee shall furnish to Lessor receipts or other proof
of payment of all taxes, assessments and charges payable by Lessee hereunder, within fIve (5) days after Lessor's
written request for such proof.
7. Use Of Leased Property. Lessee shall use the Leased Property (including the items on the
attached Equipment List) solely for the purpose of operating a commercial kitchen and restaurant, c:oncessions and
ice rink rentals, serving food and beverages, (including but not limited to alcoholic beverages, if permitted under
applicable licensing requirements) to members of the public. Lessee shall not use or permit the us,e of the Leased
Property for any other purpose without the advance written consent of Lessor, which consent shall not be withheld
unreasonably. During the Lease Term, Lessee shall not leave the Leased Property unoccupied or vacant for a period
greater than ten (10) business days without the prior written consent of Lessor.
(a) Lessee shall not use, or permit any other person or entity to use, the Leased Property in
any manner which would create or tend to create waste or a nuisance or would be unreasonably offensive to owners
or users of neighboring premises. Lessee shall refrain from any activity which would prevent Lessee from insuring
against loss or damage to the Leased Property or against personal injury or property damage, or which would
significantly increase the cost of insuring the Leased Property against loss or damage by fIre or other cause. Lessee
shall not overload the floors of the improvements located upon the Leased Property so as to cause any undue or
serious stress or strain upon the improvements located upon the Leased Property.
(b) Lessee shall not intentionally or unintentionally cause or permit any grease or kitchen
waste product or Hazardous Material to spill, leak or be discharged onto the soil or other surface of the Leased
Property or be discharged into any storm drain, sewer or other waste disposal system located on the Leased Property
which is not specifIcally designed for, and intended to be used solely for, the retention and disposal of that grease or
kitchen waste product or Hazardous Material. In the event of any such spill, leak or discharge, Lessee shall fIle all
reports, take all remedial actions and pay all fmes and other levies as shall be required by applicable federal, state
and local statute, ordinance, regulation and order.
(c) Lessee shall promptly comply with all statutes, laws, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, licenses, directives and requirements of all federal, state, county, municipal
and other governments, commissions, boards, courts, authorities, and offIcials, and any companies or associations
insuring the premises, which now or at any time hereafter may be applicable to the Leased Property or any part
thereof, or to any use of or condition of the Leased Property or any part thereof. Lessee shall remedy at Lessee's
expense any failure of compliance created through Lessee's fault or by reason of Lessee's use. Lessee shall obtain
all licenses necessary to use the Leased Property for the purposes permitted under this Agreement (including but not
limited to business licenses and Health Department licenses), and those licenses shall be issued in the name of
Lessee. Lessee shall pay when due, and before delinquency, all license fees.
(d) Lessee shall not utilize flashing lights, search lights, loudspeakers, phonographs, radios
or televisions on or about the Leased Property which can be seen, heard or experienced outside of the boundaries of
the Leased Property and which could reasonably be considered to be offensive to owners or users of neighboring
premises or members of the public.
(e) Lessee shall have the right to erect one or more signs on the Leased Property which are
approved by and consistent with the guidelines of the City of Ashland and which relate to Lessee's business
operations (including but not limited to signs prohibiting use of the licensed parking spaces by persons other than
Lessee's customers).
(f) Lessee understands that applicable law requires that the premises be open for business as
a restaurant at least one day every six months to comply with the conditions of the use permit issued by the City of
Ashland allowing operation of the premises as a restaurant business.
8. Repairs And Maintenance.
(a) Lessor shall be responsible for maintaining the foundation and bearing walls of the
improvements which constitute the Leased Property.
(b) Except as provided in subparagraphs (a) and (c) of this Paragraph 8, Lessee shall be
solely responsible for maintaining in safe, workable, neat and attractive condition (free and clear of foreign objects,
papers, debris, obstructions, standing water, snow and ice), the structures and improvements which constitute the
Leased Property, including but not limited to the roof, all interior and exterior wall surfaces, interior ceilings, lights,
windows, plate glass, plumbing fIxtures, electrical fIxtures, doors, door frames, door closures, floor I:overings, non-
bearing walls, floors, decking and landscaping. Except as provided in subparagraphs (a) and (c) of this Paragraph 8,
Lessor shall have no responsibility to perform any repairs or maintenance with respect to the Leased Property.
Lessor and its authorized agents shall have the right to inspect the Leased Property during regular working hours
upon reasonable written notice to Lessee to determine whether Lessee is complying with its obliga1ions under this
Agreement. If Lessee shall fail to keep and preserve the Leased Property in the state or condition required under this
Paragraph 8, then Lessor may, after ten (10) days written notice to Lessee, make whatever repairs are necessary to
place or return the Leased Property to safe, workable and neat condition, without liability to Lessee for any loss or
damage which may result to Lessee's business by reason of those repairs. In the event of such repairs by Lessor,
Lessee shall be obligated to pay to Lessor an amount equal to one hundred fIfteen percent (115%) of the total costs
and expenses incurred by Lessor in making those repairs, which amount shall be promptly due and owing as
additional rent.
(c) If within the first thirty (30) days following the Lease Commencement Date, any
equipment listed on the Equipment List malfunctions or otherwise requires repairs for any reason other than misuse
by Lessee and/or its employees or invitees, Lessor will either repair the item, or retire the item from the Equipment
List; no such item will be replaced by Lessor, but can be replaced by Lessee at Lessee's election. Thereafter, if any
equipment listed on the Equipment List malfunctions or otherwise requires repairs or replacement during the lease
term, Lessee shall be responsible to repair, the item, or to replace it with a similar piece of equipment of equal or
greater quality (and no older) than the item being replaced. At the termination of the Lease, Lessee shall return all of
the items listed on the Equipment List to Lessor, in the same or better condition than at the commencement of the
Lease, saving only reasonable wear and tear depreciation of the items that occurs in normal use of such items in the
operation of a restaurant business. Any items that are missing, need repair, or replacement at the termination of the
Lease will be identified by Lessor in a written notice given to Lessee, and Lessee will have two we(:ks thereafter to
repair or replace such equipment, as the case may be. Any piece of equipment which is not properly repaired or
replaced according to the standard of replacement set forth in the preceding sentence shall replaced by Lessor by the
purchase of a new piece of similar equipment, and Lessee shall be responsible to pay Lessor the full replacement
cost of such item(s).
9. No Warranties By Lessor. Lessor makes no warranty, either express or implied, as to the
condition, merchantability or fItness of the Leased Property, or the suitability of the Leased Property for Lessee's
purposes or needs. Lessee agrees that neither Lessor nor any agent of Lessor has made any representations or
warranties as to any of the following: (i) the suitability of the Leased Property for the conduct of Lessee's business,
(ii) the physical condition of the Leased Property or any improvements located thereon, (iii) the expenses of
operation of the Leased Property or any improvements located thereon, or (iv) any other matter or thing affecting or
relating to the Leased Property except as expressly set forth in this Agreement.
(a) Prior to executing this Agreement, Lessee has inspected the Leased Property and has
become thoroughly acquainted with the condition of the Leased Property. Lessee agrees to take and accept the
Leased Property "AS IS", and agrees that the taking of possession of the Leased Property by Lessee shall be a
conclusive acknowledgment by Lessee that the Leased Property is in good and satisfactory condition as of the date
when possession is taken, and that Lessor shall not be required to make any alterations or improvements of any kind
to the Leased Property.
(b) Notwithstanding the preceding provisions of this Paragraph 9, Lessor wa]Tants that prior
to the commencement of the Lease Term there has not occurred upon the Leased Property any release, spill, leak or
discharge of any Hazardous Material, and to the best of Lessor's knowledge and belief the Leased Property will be
free of contamination by Hazardous Materials at the time commencement of the Lease Term.
10. No Liens. Lessee shall not allow the Leased Property to be subjected to any mortgage or other
lien as security for a loan or other obligation of Lessee, without fIrst obtaining the express written consent of Lessor,
which consent may be withheld by Lessor for any reason or for no reason. Lessee shall keep the Leased Property
free and clear of all personal property tax liens and encumbrances. Lessee shall pay as due all claims for labor or
work done on, and for services rendered or material furnished to, the Leased Property, and Lessee shall keep the
Leased Property free from any mechanic's, workman's or materials lien of any kind. If Lessee receives notice of the
fIling of any claim or lien against the Leased Property or the commencement of any action which might affect the
title to the Leased Property, Lessee shall give prompt written notice thereof to Lessor.
11. Insurance.
(a) Lessee shall maintain and shall pay all premiums with respect to insurance protecting
Lessor and Lessee as the named insureds against loss or liabilities arising from personal injury or death or damage to
property caused by any accident or occurrence in connection with the use, operation or condition of the Leased
Property, with limits of not less than $1,000,000 per accident or occurrence on account of personal injury or death,
and $500,000 per accident or occurrence on account of damage to property, together with a blanket excess liability
policy in an amount of not less than $1,000,000. Any proceeds of the insurance referred to in this subparagraph
shall be applied towards extinguishment or satisfaction of the liabilities with respect to which those insurance
proceeds are paid.
(b) Lessee shall maintain, and shall pay all premiums for, insurance against loss or damage to
the improvements located on the Leased Property by 'fIre, lightning, flood, vandalism, malicious mischief, sprinkler
leakage, breakage of plate glass, or other perils or casualties, with an all risk endorsement. All such insurance shall
be in an amount suffIcient to cover the cost of replacing damaged or destroyed improvements. Subject to the
provisions of Paragraph 12, all such insurance shall be for the benefit of Lessor only.
(c) Each party hereby releases the other party and the other party's agents and employees
from responsibility and liability for loss or damage occurring to, or occurring in connection with the use of, the
Leased Property, if and to the extent that said loss or damage is covered under any insurance policy maintained by
the releasing party with respect to the Leased Property, and each party waives all right of recovery against the other
party and the other party's agents and employees for such loss or damage. Each party agrees to: (i) notify that
party's insurance carrier(s) of the release and waiver set forth in the preceding sentence, and (ii) obtain from that
party's insurance carrier( s), at that party's sole cost, a written waiver of all subrogation rights against the other party
and the other party's agents and employees.
(d) All insurance required to be carried by Lessee under subparagraphs 11 (a) and 11 (b) shall
be issued by responsible insurance companies, qualifIed to do business in the state of Oregon, and acceptable to
Lessor and any person or entity holding a mortgage interest in the Leased Property by reason of any loan to Lessor.
Lessee shall furnish copies of all insurance policies to Lessor promptly upon issuance. Each insurance policy shall
name Lessor as an additional insured. No insurance policy shall be subject to cancellation or modifIcation except
after ten (10) days prior written notice to Lessor. At least ten (10) days prior to the expiration of any insurance
policy, Lessee shall obtain renewals or binders for the issuance of one or more replacement insurance policies. If
Lessee fails to maintain any of the insurance required under the terms of this Lease, Lessor may procure such
insurance, and the cost of such insurance shall become a debt immediately due and payable from Lessee to Lessor as
additional rent.
12. Destruction Of Improvements. Except as specifIcally provided in this Paragraph 12, Lessee
shall not be entitled to any abatement of rent on account of any damage to or destruction of the Leased Property, and
no other obligations of Lessee shall be altered or terminated as a result of such damage or destructlon unless such
damage or destruction is a result of negligent, reckless or intentional action or omission of the lessor.
(a) In the event of any damage or destruction to the Leased Property which causes the fair
market value of the Leased Property to be reduced by fifty percent (50%) or more, Lessee shall have the right to
elect to terminate the Lease.
(1) If Lessee elects to terminate this Lease, Lessee shall so notify Le:ssor by written
notice delivered to Lessor within fifteen (15) days after the date of the damage or destruction. If Lessee so notifIes
Lessor of the termination of the Lease, then the termination shall be effective as of the date of damage or
destruction. If Lessee fails to notify Lessor of the termination of the Lease within fIfteen days after the date of
damage or destruction to the Leased Property which is covered by this subparagraph (a), then Lessee shall be
deemed for all purposes to have surrendered and waived its election to terminate the Lease under this subparagraph
(a). In the event of any termination of the Lease under this subparagraph, Lessee's right of possession and obligation
to pay rent in connection with the tenancy created hereunder shall cease as of the date of termination, and Lessee
shall be entitled to reimbursement of any prepaid rent, security deposits or other amounts paid by Lessee and
attributable to the portion of the anticipated Lease Term which is subsequent to the termination date. In the event of
termination of the Lease pursuant to this subparagraph, Lessee shall have fIve (5) days within which to vacate and
surrender the Leased Property in accordance with the requirements of Paragraph 16.
(2) If Lessee does not elect to terminate this Lease, then Lessor shall elect to receive
insurance proceeds on a "replacement cost" basis, and shall use and apply all insurance proceeds rec(:ived by Lessor
by reason of the damage or destruction of the subject improvements to restore (to the extent possible given the
amount of those insurance proceeds) those improvements to substantially the same form and condition as prior to the
damage or destruction. If the cost of restoring the damaged or destroyed improvements to their former size and
condition would exceed the insurance proceeds received by Lessor by reason of the damage or destruction, then: (i)
Lessee may elect to contribute to the restoration fund a sum of money equal to the amount by which the insurance
proceeds are exceeded by the costs of restoring the improvements to their former size and cond.ition (or to an
alternative form and condition desired by Lessee and acceptable to Lessor), and (ii) if Lessee so elects, then Lessee
shall be responsible for (and shall pay promptly when due so as to avoid the imposition of any lien against the
Leased Property) the entire excess of said costs over said insurance proceeds, and (iii) Lessor may require Lessee to
demonstrate the ability to satisfy those excess costs as a precondition to the Lessor's authorization of repairs to the
Leased Property and/or the Lessor's use of insurance proceeds to pay any portion of the costs of those repairs.
Lessor shall not in any event be obligated to expend for the restoration of damaged or destroyed improvements any
amount in excess of the insurance proceeds received by Lessor by reason of that damage or destruction. Repairs
shall be accomplished with all reasonable dispatch, subject to interruptions and delays from labor disputes and
matters beyond the control of Lessor. Until the restoration is completed Lessee shall be entitled to a pro rata
abatement of rent with respect to the portion of the Leased Property which may not be used by Lessee by reason of
that damage or destruction.
(b) In the event of any damage or destruction to the Leased Property which causes the fair
market value of the Leased Property to be reduced by less than fIfty percent (50%), Lessor shall be obligated to use
and apply all insurance proceeds received by Lessor by reason of the damage or destruction of the subject
improvements to restore (to the extent possible given the amount of those insurance proceeds) the damaged
improvements to substantially the same form and condition as prior to the damage or destruction and provide Lessee
with usable space equivalent in quantity and in character to the space available prior to the damage or destruction.
Until that restoration is completed, Lessee shall be entitled either to a pro rata or complete abatement of rent with
respect to the portion of the Leased Property which may not be used by Lessee by reason of that damage or
destruction (with there being a complete abatement of rent during any period when no portion of the Leased
Property may reasonably be used as a restaurant). Lessor shall not in any event by obligated to expend for the
restoration of damaged or destroyed improvements any amount in excess of the insurance proce(:ds received by
Lessor by reason of that damage or destruction. Repairs shall be accomplished with all reasonable dispatch, subject
to interruptions and delays from labor disputes and matters beyond the control of Lessor.
13. Eminent Domain.
(a) If, during the Lease Term, there shall be a total taking of the Leased Property by any
public authority under the power of eminent domain, then the leasehold estate of Lessee in and to the Leased
Property shall cease and terminate as of the date when the condemning authority takes possession of or title to
(whichever occurs first) all or any portion of the Leased Property. For purposes of the preceding sentence, the term
"total taking" shall mean the taking of so much of the Leased Property that the remainder of the Leased Property is
not suitable to conduct the business which Lessee intends to conduct on the Leased Property.
(b) If, during the Lease Term, there shall be a partial taking of the Leased Property by any
public authority under the power of eminent domain, then the leasehold estate of Lessee in and to the portion of the
Leased Property so taken shall terminate on the date when the condemning authority takes possession of or title to
(whichever occurs fIrst) that portion, but Lessee's leasehold estate shall continue in full force and effect as to the
remainder of the Leased Property; in such event, the monthly rent payable by Lessee for the balance of the Lease
Term shall be equitably abated by Lessor (based on the ratio between the value of the portion taken and the value of
the Leased Property prior to the taking). For purposes of the preceding sentence, the term "partial taking" shall
mean the taking of a portion of the Leased Property which does not constitute a total taking; as defined in
subparagraph (a) of this Paragraph 13.
( c) Sale of all or part of the Leased Property to a purchaser with power of eminent domain, in
the face of the threat or probability of the exercise of the power of eminent domain, shall be treated for purposes of
this Agreement as a taking by condemnation. All compensation and damages awarded for the taking of all or any
portion of the Leased Property shall be equitably apportioned between Lessor and Lessee as their interests may then
appear.
(d) Lessee shall have the right, at its sole cost and expense, to assert a separate claim in any
condemnation proceedings for the value of Lessee's leasehold interest. Whenever notice of a taking of all or any
portion of the Leased Property is received by either party, that party shall notify the other party thereof, and Lessor
and Lessee thereafter shall jointly negotiate with the taking authority as to the value of their respective interests in
the Leased Property or the improvements located thereon to the end of being fairly compensated therefor.
14. Alterations. Lessee shall not make any construction, reconstruction, alteration, improvement,
change, modification, utility installation or other alteration (hereinafter referred to in the aggregate as "Alterations")
in, on or to all or any portion of the Leased Property without fIrst providing to Lessor detailed plans, specifIcations
and explanations relating to the proposed Alterations and obtaining Lessor's express written approval to those
Alterations (which approval may not be withheld unreasonably). If Lessor shall give its consent to any Alteration,
the consent shall be deemed to be conditioned upon Lessee acquiring all necessary permits to do the Alteration prior
to commencement of the Alteration, and upon the compliance by Lessee with all of the conditions of those permits
in a prompt and expeditious manner. Lessor may require Lessee to provide to Lessor, at Lessee':; sole cost and
expense, a performance and/or payment bond in an amount equal to one and one-half times the estlmated costs of
any proposed Alteration, to ensure that the Alteration is completed in a manner satisfactory to Lessor.
( a) All Alterations by Lessee shall be done at the sole cost of Lessee, and shall become the
property of Lessor and shall remain on the Leased Property and be surrendered to Lessor upon tennination of the
Lease Term. Notwithstanding the preceding sentence, Lessor shall have the right at any time on or before the
fIfteenth day prior to the termination of Lessee's lease to require Lessee to remove, prior to the end of the Lease
Term, any and all Alterations made to the Leased Property by Lessee, and to repair any damage occasioned by such
removal, all at Lessee's expense.
(b) Lessee shall ensure that all work with respect to Alterations is done in a good and
workmanlike manner and diligently prosecuted to completion. Any Alterations shall be performed and done strictly
in accordance with all applicable laws, ordinances and regulations, and the requirements of all insuran<:e carriers and
fIre rating bureaus with respect to the Leased Property.
(c) Lessee, at its expense and subject to the other provisions of this Agreement, may install
any trade fIxtures, equipment and furniture in, on or about the Leased Property as necessary to the furtherance of the
business use permitted under this Agreement. All such trade fixtures, equipment and furniture shall remain the
property of the Lessee and shall be removed by Lessee at Lessee's expense at the end of the Lease Term. Lessee
shall repair all damage to the Leased Property caused by the installation and/or removal of any such trade fIxtures.
15. Indemnification A1!ainst Dama1!e Or Iniury. Lessee hereby releases Lessor from, agrees that
Lessor shall not be liable for, and agrees to defend, indemnify and hold Lessor harmless from and against, any and
all losses, claims, causes of action, damages, liabilities (including, without limitation, strict or absolute liabili~ in
tort or imposed by statute), charges, costs, or expenses (including, without limitation, reasonable counsel fees),
incurred in connection with or arising out of any loss or damage to property or injury or death to a person or persons,
that may be occasioned by any cause whatsoever pertaining to the Leased Property, or arising by reason of or in
connection with the occupation or use of the Leased Property or any person's presence on or about the Leased
Property (other than the negligent or culpable acts of Lessor, its agents, employees, licensees and invitees). The
defense and indemnities provided in this Paragraph 15 shall apply whether or not the loss, claim, c:ause of action,
damage, liability, charge, cost or expense is based upon the breach of a statutory duty or obligation or any theory or
rule of comparative liability, subject to any specific prohibition relating to the scope of indemnities imposed by
statutory law (and except to the extent that Lessor shall be liable as provided above). If any action or proceeding is
brought against Lessor which is or may be subject to Lessee's obligation to indemnify Lessor as set forth under this
Paragraph 15, Lessee shall, upon notice from Lessor, defend that claim at Lessee's expense using attorneys and other
counsel satisfactory to Lessor.
(a) Notwithstanding any other provIsIOn of this Agreement, the obligations of Lessee
pursuant to this Paragraph 15 shall remain in full force and effect after the termination of the Lease Term and until
the expiration of the latest period stated in any applicable statute of limitations during which a claim, cause of action
or prosecution relating to the matters described herein may be brought, and until payment in full OJr satisfaction of
any and all losses, claims, causes of action, damages, liabilities, charges, costs and expenses shall have been
accomplished.
(b) In the event of any conflict between the provisions of this Paragraph 15 and Paragraph
23, the provisions of Paragraph 23 shall take precedence. Any loss, liability, damage, claim or cause of action
arising by reason of contamination of the Leased Property by a hazardous substance shall be subject to the
indemnification provisions of Paragraph 23, and shall not be subject to the indemnification provisions of this
Paragraph 15.
16. Surrender Upon Termination.
(a) Upon expiration of the Lease Term, or upon earlier termination of the Lease for any
reason, Lessee promptly and peaceably shall remove any of Lessee's equipment and property, and shall surrender the
Leased Property in good condition, together with the items on the Equipment List. Damage caused by fIre or other
casualty and depreciation and wear and tear from ordinary use permitted under this Agreement need not be restored
by Lessee. All repairs for which Lessee is responsible shall be completed prior to the surrender of the Leased
Property.
(b) If Lessee remains in occupancy of the Leased Property after termination of the Lease
Term~ then Lessor shall have the option to treat Lessee as a tenant from month-to-month, subject to all of the
provisions of this Agreement except the provisions for rental amounts, term, and renewal, and in that event Lessee
shall be obligated to pay monthly rent to Lessor at a rate equal to one and one-halftimes (150%) the monthly rental
amount in effect as of the last month of the Lease Term. Acceptance by Lessor of rent subsequent to termination of
the Lease Term shall not result in a renewal of the Lease and shall not constitute a waiver of Lessor's right to re-
enter the Leased Property, remove Lessee or exercise any other rights available to Lessor under this Agreement or
provided by law. If Lessee fails to surrender the Leased Property in accordance herewith upon termination of the
Lease Term, Lessee shall indemnify and hold Lessor harmless from all losses and liabilities, including but not
limited to any claims made by any succeeding tenant, which result from or are based upon Lessee's failure to so
surrender the Leased Property.
17. Sale Of Lessor's Interest. Subject to the provisions of Paragraph 22, Lessor may sell all or any
portion of the Leased Property during the Lease Term. Any such sale shall be subject to the terms of this Lease.
18. Limitation On Assie:nment Or Sublease By Lessee. Lessee shall not voluntarily or by operation
of law assign this Lease or sublease any portion of the Leased Property, or enter into any license agreement,
franchise agreement, or concession agreement with respect to the Leased Property, or mortgage, hypothecate or
otherwise encumber all or any portion of Lessee's interest in this Agreement or in the Leased Property, or in any
other manner permit the occupation of or shared possession of all or any portion of the Leased Property, without
obtaining in each instance the written consent in advance of Lessor, which consent shall not be withheld by Lessor
unreasonably. Consent by Lessor in anyone instance shall not constitute a waiver or consent to any subsequent
instance. The consent by Lessor to any assignment, sublease, or encumbrance shall not relieve or otherwise affect
the continuing primary liability of Lessee under this Agreement, and Lessee shall not be released fi.om performing
any of the terms, covenants and conditions of this Agreement unless specifically agreed in writing by Lessor. Each
assignee, sublessee or transferee of Lessee shall assume all obligations of Lessee under this Agreem'~nt and shall be
and remain liable jointly and severally with Lessee for the payment of rent and for the due performance of all of the
terms, covenants, conditions and agreements required of Lessee under this Agreement. No assignment, sublease or
transfer shall be binding on Lessor unless the assignee, sublessee or transferee shall deliver to Lessor an executed
instrument in a form which contains a covenant of assumption by the assignee, sublessee or transferee which is
satisfactory in form and substance to Lessor. The failure or refusal of any assignee, sublessee or transferee to
execute such an instrument of assumption shall not release or discharge the assignee, sublessee or transferee from its
liability to Lessor, but shall provide Lessor with an option to terminate said assignment, sublease or transfer.
19. Landlord's Lien. Lessee hereby grants to Lessor a lien upon the improvements, trade fIxtures
and furnishings of Lessee to secure full and faithful performance of all of the terms of this Agreement.
20. Time Of Essence. Time is of the essence in the performance of all obligations of Lessor and/or
Lessee under this Agreement.
21. Lessee's Default.
(a) The following shall be "events of default" under this Agreement, and the terms "event of
default" or "default" shall mean, whenever used in this Agreement, anyone or more of the following events:
(1) The failure by Lessee to payor cause to be paid the full amount of any rent or
other charge specified in this Agreement, within ten (10) days after the date when due. Before declaring a default in
the making of any payment required under this Agreement, Lessor shall provide to Lessee a written notice
specifying that there has been a default in the making of a required payment, and Lessee shall have five (5) days
from the effective date of that notice within which to pay the delinquent amount and prevent the occurrence of a
default hereunder. Notwithstanding the immediately preceding sentence, Lessor shall not be obligated to provide
any written notice to Lessee of a particular delinquent payment if Lessor shall have provided to Lessee written
notice of a prior delinquent payment twice or more during the then immediately preceding 365 day period; in that
event Lessor shall not be required to provide any notice to Lessee before declaring a default arising out of Lessee's
failure to make any payment required under this Agreement, but no default shall be declared until ten (10) days after
that payment is due.
(2) The failure by Lessee to comply with any term or condition, or fulfIll any
obligation of this Agreement (other than the payment of rent or other charge) within thirty (30) days after written
notice by Lessor specifying the nature of the default with reasonable particularity and requesting that the default be
remedied. If the default is of such a nature that it cannot be completely remedied within the 30-day period, this
provision shall be complied with if Lessee begins correction of the default within the thirty-day period and thereafter
proceeds with reasonable diligence and good faith to affect the remedy as soon as possible.
(3) An assignment by Lessee for the benefIt of creditors, the fIling by Lessee of a
voluntary petition of bankruptcy, an adjudication that Lessee is bankrupt, the appointment of a receiver for the
properties of Lessee, the fIling of an involuntary petition of bankruptcy and the failure of Lessee to secure dismissal
of the petition within thirty (30) days after fIling, or levying of execution upon, Lessee's leasehold interest and the
failure of Lessee to secure release of the levy or execution within ten (10) days after Lessee's actual notice thereof.
(b) Whenever any event of default shall have occurred, Lessor may take anyone or more of
the following remedial steps:
(1) Declare, by written notice to Lessee, that all unpaid and delinqm:nt installments
of rent, and all other unpaid and delinquent charges and payments due under this Agreement and under the
aforementioned Agreement for Purchase and Sale of Business Assets shall be immediately dUt~ and payable,
whereupon those amounts shall become immediately due and payable.
(2) Terminate the lease and all rights of Lessee under this Agreement, by giving
written notice of termination to Lessee. In the event of such termination, Lessor shall have the right to re-enter and
take possession of the Leased Property and remove all persons and property therefrom by summary proceedings or
otherwise, and to recover from Lessee: (i) any unpaid rent earned at the time of termination, plus (ii) the fair market
value of the amount by which the unpaid rent which would have been earned after termination and prior to the end
of the Lease Term exceeds the amount of rent which Lessee proves can reasonably be earned by Lessor during that
time, plus (iii) any other amount necessary to compensate Lessor for all detriment proximately caused by Lessee's
failure to perform its obligations under this Agreement or which in the ordinary course of affairs would be likely to
result therefrom, plus (iv) all other amounts available to Lessor at law or in equity. In the event of any re-entry of
the Leased Property following termination of the lease, Lessor may make any suitable alterations or changes in the
character or use of the Leased Property, provided that Lessor shall not be required to relet the Leased Property for
any use or purpose other than that specifIed in this Agreement or for any use or purpose whi,:;h Lessor may
reasonably consider injurious to the Leased Property. Lessor may relet all or a portion of the Leased Property, either
alone or together with other properties, for a tenn longer or shorter than the term of this Agreement, and upon any
reasonable terms and conditions (including the granting of rent-free occupancy or other rent concessions
(3) To the extent permitted by law, terminate Lessee's possessory inte rest in the
Leased Property, without terminating Lessee's lease, in which case Lessor shall have the right to enter and take
possession of the Leased Property and to remove and exclude Lessee from possession of the Leased Property and to
use its best efforts to lease the Leased Property to another person for the account of Lessee; any such entry and other
actions shall not operate as a waiver or satisfaction, in whole or in part, of any claim or demand arising out of or
connected with any breach or default by Lessee of its obligations under this Agreement. If Lessor re-enters the
Leased Property but does not elect to terminate Lessee's leasehold interest, then Lessor may from time to time,
without terminating Lessee's lease, either recover from Lessee all rentals as they become due, or relet the Leased
Property or any portion thereof for such term or terms and at such rental or rentals and upon such other terms and
conditions as Lessor in its sole discretion may deem advisable. Any rentals so received by Lessor from such
reletting shall be applied as follows: fIrst, to the payment of any damages and indebtedness, othe:::r than rent due
hereunder, owed by Lessee to Lessor; second, to the payment of any costs of such reletting; third, to the payment of
the cost of any alterations and repairs to the Leased Property required in connection with such reletting; fourth, to
the payment of rent due and unpaid hereunder; and last, to the payment of any future rent as the same may become
due and payable hereunder. If the portion of the rental amount received from reletting which i~, applied to the
payment of rent hereunder is less than the monthly rent payable by Lessee, then Lessee promptly shall pay the
defIciency to Lessor. Lessee also shall pay promptly to Lessor any costs and expenses incurred by Lessor in
connection with a reletting or in making alterations and repairs to the Leased Property which are not covered by the
rental received from reletting.
(4) Have a receiver appointed to take possession of, and to manage and control, the
Leased Property and to collect the profits and pay the net income from the operation of the Leased Property as
ordered by a court of competent jurisdiction. The right to appoint a receiver shall be available without regard to the
adequacy of the security for the balance due Lessor or the solvency of Lessee, or the absence of waste or danger of
loss or destruction of the Leased Property and without the necessity of notice to Lessee, it being understood that the
careful and prudent management, care, and control of the Leased Property is an essential form of Lessor's security
for the faithful performance of Lessee's obligations under this Agreement. Any receiver so appointed may serve
without bond. The employment of a person by Lessor shall not disqualify that person from serving as a receiver.
Upon taking possession of all or any portion of the Leased Property, the receiver may (i) use, operate, manage,
control and conduct any business located upon the Leased Property and make whatever expenditures for
maintenance and improvements as the receiver in its judgment shall deem proper; and (ii) collect all revenues,
income and profIts from the Leased Property and/or any business located on the Leased Property, and apply those
sums to the reasonable expenses of use, operation and management thereof. If the revenues produced by the Leased
Property and/or any business located on the Leased Property are insuffIcient to pay expenses, the receiver may
borrow, from Lessor or from any other source, whatever sums as the receiver may deem necessary for the purposes
stated in this subparagraph (4), and the repayment of those sums shall be secured by this Agreement. Amounts
borrowed from or advanced by Lessor shall bear interest at the rate of 12% per annum from the date of expenditure
until repaid, and shall be paid by Lessee on demand.
(c) No remedy conferred upon or reserved to Lessor under this Agreement i~, intended to be
exclusive of any other available remedy, but each and every remedy shall be cumulative and in addition to every
other remedy given under this Agreement or existing at law or in equity. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof,
and any such right or power may be exercised from time to time and as often as deemed expedient by Lessor. In
order to entitle Lessor to exercise any remedy reserved to Lessor, it shall not be necessary to give any notice other
than a notice which is expressly required in this Agreement.
22. Lessee's Ri!!ht To Receive Notice Of Lessor's Intent To Sell And Lessee's Ri!!ht Of First
Refusal Upon Sale.
(a) If, during the Lease Term, Lessor wishes to sell the Leased Property, then Lessor agrees
to provide written notice of that intent to Lessee not less than thirty (30) days before the earlier of: (i) the listing of
the property for sale with any broker, (ii) the acceptance of any purchase offer submitted by an unrelated third party.
(b) If, during the Lease Term, Lessor receives a bona fIde offer from a third party who
wishes to purchase the Real Property, which offer Lessor shall desire to accept, Lessor shall immediately notify
Lessee of the existence of that offer by delivering to Lessee a complete copy of that offer. Lessee::: shall have the
right and option for thirty (30) days after delivery of that offer to elect to purchase the Real Property for the same
consideration and under the same terms and conditions as contained in that offer. If Lessee wishes to exercise its
option, it shall do so by giving written notice of its election to Lessor within that three (3) day period.
(1) If Lessee exercises its option to purchase the Real Property as provided in this
subparagraph 22(b), then: (i) Lessee shall have thirty days from the date of the exercise of the Right within which to
qualify for fInancing for the purchase and to qualify the Real Property for the amount of the loan required by Lessee
to complete the purchase, which qualifications shall be confrrmed in writing by the lender and supplied to Lessor
within said 30 day period; (2) a total of sixty (60) days after the date of exercise of the option within which to close
the purchase of the Real Property (and Lessor and Lessee shall each be obligated to take all reasonable actions to
facilitate the closing of the purchase), and (iii) Lessor shall provide to Lessee a title insurance policy in an amount
equal to the purchase price for the purchased portion of the Real Property, and (iv) Lessor shall have the right to
select the title insurance company and closing escrow agent to handle the closing of the transaction, and (v) the cost
of the closing escrow shall be shared equally by the parties.
(2) If Lessee's option is not exercised within the thirty (30) day period, then Lessor
shall have the right to sell the subject portion of the Real Property to the third party offeror for the consideration and
on the terms and conditions contained in the offer presented to Lessee.
(c) If any portion of the Leased Property is sold by Lessor (in a manner consistent with
subpafagraphs (a) and (b) of this Paragraph 22), then Lessee thereafter shall have no purchase rights of any kind
with respect to that portion of the Real Property, and no further right to receive notice of subsequent sales with
respect to that portion of the Leased Property. The sale of any portion of the Real Property to a third party purchasef
under this Paragraph 22 shall not affect Lessee's leasehold rights under this Agreement.
23. Lessee's Responsibility For Contamination By Hazardous Substances.
(a) Lessee shall at all times during the Lease Term use, sell, store, transport, dispose of and
treat hazardous materials (as defmed in Paragraph l(b) of this Agreement) in strict accordance with all applicable
federal, state and local laws and regulations (collectively referred to in this Paragraph 23 as the "Laws"). If, prior to
termination of the Lease and completion by Lessee of the obligations imposed under Paragraph 16, there occurs
upon the Leased Property any release, spill, leak or discharge of hazardous materials which is in violation of any of
the Laws and is caused by any activity or activities of Lessee on or with respect to the Leased Property, then Lessee
shall be obligated to cause and complete the repair, cleanup, detoxifIcation and/or decontamination of the Leased
Property (or any improvements thereon) and the preparation and implementation of any closure, remedial action or
other required plan or plans in connection therewith, all as required by the Laws.
(b) Lessee shall indemnify, defend, protect and hold harmless Lessor and each of Lessor's
partners, employees, agents, successors and assigns (collectively referred to in this Paragraph 23 as "'Lessor"), from
and against any and all criminal and civil claims and causes of action (including but not limited to claims resulting
from, or causes of action incurred in connection with, the death of Of injury to any person, or damage to any
property), liabilities (including but not limited to liabilities arising by reason of actions taken by any governmental
agency), penalties, forfeitures, prosecutions, losses and expenses (including reasonable attorney fees) which direc tly
or indirectly arise from or are caused by either the presence in, on or about the Leased Property or any
improvements located thereon of any hazardous materials, or the use, sale, storage, transportation, disposal, release,
threatened release, discharge or generation of hazardous materials to, in, on, under, about or from the Leased
Property or any improvements located thereon (other than use, sale, storage, transportation, disposal, release,
threatened release, discharge or generation by Lessor). Lessee's obligations under this subparagraph 23(b) shall
include, but not be limited to, the obligation to bear the expense of any and all costs, whether foreseeable or
unforeseeable, of any necessary (as required by the Laws) repair, cleanup, detoxifIcation or decontamination of all
or any portion of the Leased Property (or any improvements located thereon), and the preparation and
implementation of any closure, remedial action or other required plan or plans in connection therewith.
( c) Notwithstanding any other provision of this Agreement, the obligations of Lessee
pursuant to this Pafagraph 23 shall remain in full force and effect after the termination of the Lease Term and until
the expiration of the latest period stated in any applicable statute of limitations during which a claim, cause of action
or prosecution relating to the matters described herein may be brought, and until payment in full or satisfaction of
any and all losses, claims, causes of action, damages, liabilities, charges, costs and expenses for which Lessee is
liable hereunder shall have been accomplished.
(d) For purposes of subparagraph 23(a), any acts or omissions of or by anyone or more
employees, agents, assignees, sublessees, franchisees, licensees, permitees, customers, contractors, successors-in-
interest or other persons permitted by Lessee to ha ve access to the property or acting for or on behalf of Lessee
(whether or not the actions of such persons are negligent, intentional, willful or unlawful) shall be strictly
attributable to Lessee.
( e) If any claim, demand, action or proceeding is brought against Lessor whi,:;h is or may be
subject to Lessee's obligation to indemnify Lessor as set forth under this Paragraph 23, Lessor shall provide to
Lessee immediate notice of that claim, demand, action or proceeding, and Lessee thereafter shall defend Lessor at
Lessee's expense using attorneys and other counsel selected by Lessee and reasonably acceptable to Lessor. Lessor
agrees to cooperate with Lessee in Lessee's defense of Lessor. The indemnifIcation provided under this Paragraph
shall apply to any loss of business or other consequential damage suffered by Lessor or any other person.
24. Notice Or Delivery. Any notice or delivery required or permitted under this Agreement
(including but not limited to delivery by Lessor of a copy of a purchase offer pursuant to Paragraph 22) shall be
deemed to have been given and delivered when deposited with a carrier for personal delivery or in the United States
mail, as certified mail, postage prepaid, and addressed as follows:
To Lessor:
Marc Rosewood and Roanna Rosewood
400 Sheridan ST.
Ashland, Or. 97520
To Lessee:
With a copy to:
Garrison F. Turner
P.O. Box 1299
AsWand, Oregon 97520
or to such other address of the party being provided with the notice as may be specifIed in writing by that party from
time to time.
25. Attornment And Subordination.
(a) Lessee shall execute at Lessor's request, without further consideration, any and all
instruments subordinating this Agreement to the lien of any mortgage, deed of trust or other encumbrance which
may now or hereafter affect the Leased Property, together with all renewals, modifIcations, consolidations,
replacements or extensions thereof; provided, however, that: (i) any encumbrancer relying on that subordination or
those instruments will covenant with Lessee that Lessee's leasehold interests hereunder shall remain in full force and
effect, and (ii) Lessee shall not be disturbed in the event of sale, foreclosure or other action so long as Lessee is not
in default hereunder, and (iii) condemnation and insurance proceeds shall be paid to Lessee in accordance with this
Agreement notwithstanding the subordination of the Lease to the lien of the mortgage or deed of trust. Upon
Lessor's request, Lessee shall furnish to Lessor a copy of Lessee's fInancial statement; Lessor shall not disclose
Lessee's fInancial statement to any person or entity other than to a potential lender or purchaser of the Leased
Property.
(b) If Lessor's interest is transferred to and owned by any lender of Lessor as a result of a
foreclosure or other proceeding brought by the lender in lieu of or pursuant to a foreclosure or in any other manner,
and if the lender thereby succeeds to the interest of Lessor hereunder, then, subject to the non-disturbance agreement
referred to in subparagraph (a), Lessee shall be bound to the lender under all of the terms, covenants and conditions
hereof for the balance of the remaining Lease Term, with the same force and effect as if the lender was the original
Lessor hereunder. Lessee hereby attorns to any such lender, with the attornment to be effective and self-operative
immediately upon the lender succeeding to the interest of Lessor, and without the necessity of the execution of any
further instrument. If a lender shall succeed to the interest of Lessor, the lender shall not be liable for any act or
omission of Lessor, and shall not be subject to any offsets or defenses which Lessee might assert against Lessor and
which arise prior to the date of that attornment.
26. Estoppel Certificates. Within twenty-one (21) business days after request by Lessor, Lessee shall
execute and deliver to Lessor an estoppel certifIcate in such form as Lessor may reasonably request, or as a
prospective purchaser or encumbrancer of the Leased Property may reasonably request, relating to the then current
status of the lease and stating any claims, offsets or defenses asserted by Lessee with respect to the lease. Any such
estoppel certificate may be conclusively relied upon by any prospective purchaser or encumbrancer of the Leased
Property. If Lessee fails to deliver a requested estoppel certifIcate within twenty-one (21) business days after
Lessor's written request therefor, Lessee shall be deemed conclusively to have agreed that: (i) this Agreement is in
full force and effect, without modification except as may be represented by Lessor, (ii) there are no uncured defaults
in Lessor's performance under this Agreement, (iii) not more than one monthly installment of the rental due under
this Agreement has been paid in advance, and (iv) any terms or conditions of an estoppel certificate required by a
prospective purchaser or encumbrances of the Leased Property are satisfied and agreed to by Lessee. Any failure by
Lessee to deliver an estoppel statement (showing any exceptions to any of the statements of act required thereby)
shall be a material breach of this Agreement.
27. Good Title. Lessor warrants that it has good right to lease the Leased Property and will defend
Lessee's right to quiet enjoyment of the Leased Property against the lawful claims of all persons during the Lease
Term. Lessor further warrants that Lessor knows of no actual or threatened proceedings which might adversely
affect Lessee's use and possession of the Leased Property.
28. Miscellaneous. Nothing contained in this Agreement shall create between the pa.rties hereto, or
shall be relied upon by any other person as creating, any relationship of partnership, association, joint venture,
principal and agent, or otherwise. The sole relationship of the parties hereto shall be that of landlDrd and tenant.
There are no oral agreements or representations between the parties hereto which affect this Agre(~ment, and this
Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, warranties,
representations and understandings, if any, between the parties. The paragraph headings set forth in this Agreement
are set forth for convenience purposes only, and do not in any way defIne, limit or construe the contents of this
Agreement. If any provision of this Agreement shall be determined to be void by any court of competent
jurisdiction, then that determination shall not affect any other provisions of this Agreement, and all such other
provisions shall remain in full force and effect. It is the intention of the parties that if any provision of this
Agreement is capable of two constructions, only one of which would render the provision valid, then the provision
shall have the meaning which renders it valid. If suit or action is instituted in connection with any controversy
arising out of this Agreement, the prevailing party in that suit or action or any appeal therefrom shall be entitled to
recover, in addition to any other relief, the sum which the court may judge to be reasonable attomey fees. This
Agreement shall inure to the benefit of and shall be binding upon the successors, assigns, heirs and personal
representatives of the parties. This Agreement may be executed in multiple counterparts, each of which shall be an
original, and all of which shall constitute a single instrument, when signed by the parties. Waiver by either party of
strict performance of any of the provisions of this Agreement shall not be a waiver of, and shall not prejudice the
party's right to subsequently require strict performance of, the same provision or any other provision, and no delay
or omission to exercise any right or power accruing upon any breach shall impair any such right or power or shall be
construed to be a waiver thereof. The consent or approval of either party to any act by the other party of a nature
requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any
subsequent similar act. No remedy conferred upon or reserved to either party under this Agreement is intended to be
exclusive of any other remedy available to that party by reason of the other party's breach, but t:ach and every
remedy shall be cumulative and in addition to every other remedy given under this Agreement or at law or in equity.
This Lease shall be governed and performed in accordance with the laws of the state of Oregon. Each of the parties
hereby irrevocably submits to the jurisdiction of the courts of Jackson County, Oregon, and agrees, that any legal
proceedings with respect to this Agreement shall be fIled and heard in the appropriate court in Jackson County,
Oregon.
29. Memorandum To Be Recorded. At the request of either party, both parties agn~e to execute a
Memorandum evidencing the execution of this Agreement for purposes of recordation in Jackson
County, Oregon, which Memorandum shall be recordable by either party at any time after the
Lease Commencement Date.
IN WITNESS WHEREOF, the parties have executed this Agreement effective October 22,2004.
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LESSEE:
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