Tigard Chamber Of Commerce ~ LE190003 ~ Portion Of Land For Development Of The Tigard Street Heritage Trail COMMERCIAL LEASE
This lease ("Lease"),is made and entered by and between the Tigard Area Chamber of
Commerce, Inc.,an Oregon nonprofit corporation ("Lessor") and the City of Tigard, an Oregon
municipal corporation ("Lessee"). Lessor and Lessee may be collectively referred to herein as the
"Parties" and individually as a"Party."
RECITALS
WHEREAS,Lessor owns property located at 12345 SW Main St.,in Tigard ("Premises");
and
WHEREAS, the Parties wish to enter into a lease of a portion of the Premises to facilitate
the development of the Tigard Street Heritage Trail ("Trail");and
WHEREAS,a portion of the Trail is expected to be constructed on the Premises.
AGREEMENT
NOW THEREFORE, for good and valuable consideration and in consideration of the mutual
covenants herein, the Parties agree as follows:
1. LEASE OF PROPERTY. Lessor hereby agrees to lease to Lessee,and Lessee hereby agrees to
lease from Lessor the Property described herein on the terms and conditions set forth below.All
capitalized terms are defined as provided for in this Lease. Unless expressly provided otherwise,
Lessor shall include its officers, employees,agents, successors and assigns and Lessee shall
include its officers, employees, agents, successors,and assigns.
2. PROPERTY. The Property hereby leased consists of the real property and all improvements
thereon located on the strip of land, approximately two feet in width,running along the
northern face of Lessor's building from the front property line of the Premises along Main
Street to the rear property line adjacent to the parking lot owned by Lessee. The real property
and Improvements are more particularly described in Exhibit A, attached and incorporated
herein (the"Property"). Improvements include utilities, fixtures existing or constructed,
replaced,altered or installed by Lessee pursuant to this Lease ("Improvements"). Unless the
context requires otherwise, "Property"includes the Improvements. The Property does not
include, and the Lessee has no rights or obligations, to the existing structures on the Premises.
3. TERM. The term of this Lease will commence on July 1,2019 (the"Commencement Date")
and continue until June 30,2118 ("Expiration Date"),unless sooner terminated under the terms
of this Lease.
4. CONSIDERATION. Consideration for this Lease will be Lessee's funding of improvements
to the Property as part of the Trail.
5. UTILITIES. Lessee is solely responsible for establishing,in its name, an account with Portland
General Electric for electric service and a City of Tigard account for water service. Lessee will
pay all charges when due. Lessor will not be in default or liable in any way for an interruption or
failure in the supply of any utilities to the Property. Provided,however, that if such interruption
or failure solely results from Lessor's negligent action or inaction,Lessor will make diligent,
reasonable and good faith efforts to restore such service at its expense.
6. USE OF PROPERTY.
6.1. Permitted Use. Lessee may use the Property for the construction, operation, and
maintenance of the Trail,including Improvements (the "Permitted Use") and for no other
purpose without Lessor's written consent. Operation of the Trail includes uses typically
associated with public events or public property,including but not limited to public
pedestrian and bicycle travel,gatherings, seating, art displays,public events, or vending.
6.2. Compliance with Laws.Lessee will comply with all applicable laws, ordinances,rules, and
regulations including but not limited to fire codes, zoning regulations,licensing,permitting,
and Environmental Laws as that term is defined in Section 10. Subject to a joint defense
agreement the Parties may execute,Lessee will promptly provide to Lessor copies of all
communications to or from any government entity that relate to Lessee's alleged
noncompliance with any laws or other government requirements.
6.3. Prohibited Uses. Lessee will not use,nor permit or suffer anyone else to use, the Property
that (a) adversely impacts, or is likely to adversely impact,the Property; (b) creates any
condition that is a hazard or nuisance,violates any law,regulation or permit, (c) creates a
safety risk to the public.
6.4. Lessor's Use. Except as provided herein,Lessee will have the right to use the Property
consistent with this Lease and without hindrance or interruption by Lessor or any other
persons claiming by, through or under Lessor, subject to the terms and conditions of this
Lease. Lessee agrees that Lessor or its licensees may make improvements to the Premises
and adjacent areas that may temporarily cause noise or otherwise temporarily disrupt
Lessee's quiet enjoyment of the Property. Lessor will make reasonable efforts to notify
Lessee in advance of such work.
7. CONDITION OF PROPERTY;NO WARRANTIES.
7.1. Lessee represents and warrants that it has had ample time and opportunity to conduct any
such inspections or investigations as it deems necessary to ascertain the condition of the
Property,including environmental inspections. Lessor has made no warranties or
representations regarding the condition of the Property, including,without
limitation, compliance with any applicable laws and regulations or suitability for
intended uses. Lessee accepts the Property in"AS IS" condition. Lessor will have no
liability to Lessee,and Lessee will have no claim against Lessor, for any damage,injury, or
loss of use caused by the existing condition of the Property.
7.2. This Section 7 survives termination or expiration of the Lease.
8. MAINTENANCE AND REPAIR OBLIGATIONS.
8.1. Lessee Maintenance. Lessee agrees to maintain the Property in a safe condition and clean
condition.
8.2. Lessee Improvements. Lessee may install Trail amenities,including, but not limited to,
seating, signs,lighting,poles, or art on the Property. Lessee's Improvements may not
obstruct existing doors or ingress/egress from the building.
8.3. Other than activities provided for in this Section,Lessee may not make any alterations to
the Property without the prior written consent of Lessor.
9. LESSEE INSURANCE.
9.1. Lessee will maintain a general commercial liability policy (including coverage for broad form
contractual liability, sudden and accidental spill coverage on land and on water,and any
personal injury liability) against liability for damages because of personal injury, death, or
damage to property,including loss of use thereof,arising in any way related to Lessee's use
and occupancy of the Property. Lessee will also maintain standard fire legal liability
coverage. The policy will name Lessor,its officers, agents, and employees as additional
insureds. Coverage must be in an amount not less than$1,000,000 per occurrence with
combined single limits of$2,000,000 aggregate or the amount provided for in the Oregon
Tort Claims Act,whichever is greater.
9.2. Within 10 days of the Commencement Date,Lessee will provide proof of insurance to
Lessor. Lessee will immediately notify Lessor of any material changes or termination.
Insurance will be provided by an insurance company acceptable to Lessor or Lessee may
self-insure.
9.3. Lessee will maintain Workers'Compensation insurance for all Lessees' employees,including
coverage for employer's liability,as required by Oregon law.
9.4. All other insurance,concerning the Premises and Property,is the obligation and
responsibility of Lessor.
10. ENVIRONMENTAL OBLIGATIONS OF LESSEE.
10.1. Definitions
10.1.1. "Environmental Laws"include any and all federal, state, and local statutes,
regulations,rules,and ordinances (including those of the Oregon Department of
Environmental Quality"DEQ" or any successor agency) now or hereafter in effect,as
they may be amended from time to time,that in any way govern materials, substances,
or products and/or relate to the protection of health, safety, or the environment in the
broadest sense.
10.1.2. "Hazardous Substances"includes any substance,material, or product defined or
designated as hazardous, toxic,radioactive, or dangerous,regulated wastes or
substances, or any other similar term in or under any Environmental Laws.
10.2. Lessee will ensure that no Hazardous Substance release occurs and will fully comply with
all Environmental Laws and any orders issued by agencies charged with their oversight or
enforcement.Lessee is permitted to use and handle Hazardous Substances or any substance
such as petroleum products,solvents,lead,asbestos only as necessary to conduct its
Permitted Uses and only in quantities needed to conduct its Permitted Uses. All use,
storage,handling and disposal will be in full and strict compliance with all applicable
Environmental Laws, occupational health and safety laws and regulations,best management
practices of the industry and this Lease.Lessee immediately shall notify Lessor of any
release, any agency environmental inspection or any notification of an alleged violation.
10.3. Except in the case of an emergency or an agency order requiring immediate action,Lessee
will give Lessor advance notice before beginning any investigatory,clean-up,remediation,
or removal procedures. Lessor may approve or disapprove the proposed action procedures
and the company and individuals conducting the procedures whether on the Property, or
any affected property or water provided that such approval will not be unreasonably
withheld. Lessor will have the right to require Lessee to contract for and fund oversight by
any governmental agency with jurisdiction over any investigatory, containment,removal,
remediation,and restoration activities and to require Lessee to seek and obtain a
determination of no further action or an equivalent completion-of-work statement from the
governmental agency.
10.4. In addition to any other obligation,Lessee is solely responsible for damages,including but
not limited to the cost of response,clean-up and remediation of the Property excepting only
any such damages arising from the actions of Lessor, and will hold harmless,indemnify and
defend Lessor against any claims,arising from a release,or environmental contamination or
violation of an Environmental Law in any way attributable to Lessee as provided in Section
14.1. This includes any penalties or fines assessed.
10.5. This Section 10 survives termination or expiration of the Lease.
11. LESSEE DEFAULT AND LESSOR REMEDIES.
11.1.Failure to comply with any term or condition or fulfill any obligation of the Lease within 15
days after written notice by Lessor specifying the nature of the default with reasonable
particularity. If the default is of such a nature that it cannot be completely remedied within
the 15-day period,Lessee will be in compliance with this provision if Lessee begins
correction of the default within the 15-day period and thereafter proceeds with reasonable
diligence and in good faith to effect the remedy as soon as practicable.
11.2.Upon default by Lessee,Lessor shall have any remedy available by law,including but not
limited to termination of the Lease,damages or specific performance. Lessee's liability for
damages due to Lessee's default shall survive termination. Damages shall be limited to
actual damages excluding consequential or punitive damages. Lessor will have a landlord
lien as provided by law,may reenter, take possession of the Premises, and remove any
persons or personal property by legal action or by self-help with the use of reasonable force
and without liability for damages. Lessor may re-let the premises on such terms and
conditions as it deems appropriate and make improvements,repairs or modifications.
11.3.Upon termination,Lessee will vacate the Property immediately;remove any personal
property of Lessee,including any fixtures that Lessee is required to remove at the end of the
Lease Term;perform any cleanup,alterations,or other work necessary to leave the Property
in the condition required at the end of the term,including the Improvements identified in
Section 8.2.
11.4.Each right and remedy of Lessor in this Lease is cumulative,nonexclusive and in addition
to every other right or remedy provided by law.
12. LESSOR DEFAULT AND LESSEE REMEDIES.
12.1.Failure of Lessor to fulfill any obligation of this Lease within 15 days after written notice by
Lessee specifying the nature of the issue with reasonable particularity will be a default. If
the default is of such a nature that it cannot be completely remedied within the 15-day
period,Lessor will be in compliance with this provision if Lessor begins correction of the
default within the 15-day period and thereafter proceeds with reasonable diligence and in
good faith to effect the remedy as soon as practicable.
12.2. If Lessor fails to cure a default,Lessee will be entitled to seek any of the remedies available
by law,including specific performance.Any damages will be limited to actual damages,
excluding consequential and punitive damages.
13. TERMINATION.
13.1.Upon termination or expiration,Lessee will surrender the Property in good condition,
ordinary wear and tear excepted.Alterations constructed by Lessee with permission from
Lessor or pursuant to Section 8.2 of this Lease are not required to be removed or restored
to the original condition.All repairs for which Lessee is responsible will be completed
before the surrender.
13.2. At or before the termination of this Lease, or as otherwise agreed to in writing by the
Parties,Lessee,at Lessee's expense,will remove from the Property any and all of Lessee's
personal property and will repair any damage to the Property resulting from the installation
or removal of the personal property.Any items of personal property that remains on the
Property after the termination or agreed date may either be: (a) retained by Lessor without
any requirement to account to Lessee therefor;or (b) removed and disposed of by Lessor,
without any requirement to account to Lessee therefor,with Lessor being entitled to
recover all costs thereof from Lessee. Removal by Lessee will occur prior to the Expiration
Date or within 30 days of earlier termination, or as the parties may otherwise agree in
writing. Lessor may assert and enforce the landlord lien provided for by law.
14. INDEMNIFICATION.
14.1.Within the limits of the Oregon Tort Claims Act,Lessee will hold harmless,indemnify and
defend Lessor from and against any and all liabilities,claims, damages, fines,penalties and
costs (including but not limited to attorney fees at trial and on appeal and environmental
response and remediation costs) that may be asserted against or imposed on Lessor arising
out of Lessee's use, occupancy or improvement of the Property.
14.2. Lessor will hold harmless,indemnify and defend Lessee from and against any and all
liabilities,claims, damages, fines,penalties and costs, (including but not limited to attorney
fees at trial and on appeal) arising from Lessor's negligent actions or inaction directly
relating to the Premises or Property.
14.3. This Section 14 will survive the termination of this Lease with respect to all matters arising
or occurring before surrender of the Property by Lessee.
15. SUBORDINATION. This Lease will at all times be subject and subordinate to any mortgage
or deed of trust (an "Encumbrance") now existing or hereafter placed on Lessor's interest in the
Premises or the Improvements or any portion thereof, and to any and all modifications,
renewals, or extensions of an Encumbrance. If Lessor's interest in the Premises and the
f
Improvements are sold or transferred in connection with the judicial or nonjudicial foreclosure
of any Encumbrance, or by deed in lieu of foreclosure,Lessee will attorn to the purchaser as
Lessor (the "Successor Lessor"), and any such Successor Lessor will recognize this Lease and
will not disturb the quiet enjoyment and possession of the Property and the Improvements by
Lessee under this Lease as long as Lessee is not in default of the Lease, except that the Successor
Lessor will not: (a) be liable for any previous act or omission of Lessor under this Lease; (b) be
subject to any offset, deficiency, or defense that will have accrued to Lessee against Lessor; or (c)
be bound by any previous modification of this Lease unless the modification has been expressly
approved in writing by the Encumbrance holder. Within 15 days after request by Lessor or any
existing or prospective lender of Lessor,Lessee will execute a commercially reasonable form of
subordination, nondisturbance, and attornment agreement that is consistent with this section 15.
If any act or omission of Lessor would give Lessee the right,immediately or after lapse of a
period of time, to cancel or terminate this Lease, or to claim a partial or total eviction,Lessee
will not exercise such right: (i) until it has given written notice of the act or omission to Lessor
and each Encumbrance holder whose name and address have previously been furnished to
Lessee, and (ii) until a reasonable period of time for the parties to cure the condition has passed.
16. SUCCESSORS.This lease is binding on the parties,their successors and assigns. If the original
Lessor under this Lease, or any successor owner of the Premises, sells or conveys the same or
any interest in the Property,the new owner hereby assumes the obligations of Lessor under this
Lease. All liabilities and obligations on the part of the original Lessor or the successor owner
under this Lease accruing thereafter will terminate,and thereupon all such liabilities and
obligations will be binding on the new owner. Lessee agrees to attorn to the new owner.
17. MISCELLANEOUS PROVISIONS.
17.1. Waiver by either Parry of strict performance of any provision of this Lease will not be a
waiver of or prejudice the Party's right to require strict performance of the same provision
in the future or of any other provision.
17.2. Neither this Lease nor any portion of the Property may be assigned, transferred or
subleased by Lessee except with the consent of Lessor,which consent may not be
unreasonably withheld.
17.3. If any provision of this Lease is held to be unenforceable or invalid,the remainder shall be
deemed valid and operative as far a reasonable and practical.
17.4. The time for performance of obligations hereunder will be extended for a period equal to
any hindrance, delay, or suspension in the performance of that Party's obligations,beyond
the Party's reasonable control and directly impacting the Party's ability to perform, caused
by any of the following events: unusually severe acts of nature,including floods,
earthquakes,hurricanes,and other extraordinary weather conditions;civil riots,war,
terrorism, or invasion;major fire or other major unforeseen casualty or labor strike that
precludes the Party's performance of the work in progress.
17.5. Subject to the terms and conditions of this Lease,Lessor is not obligating itself, or any
other agency with respect to any discretionary action relating to the Permitted Uses or
improvements to be constructed on the Property,including,but not limited to,rezoning,
variances, environmental clearances or any other governmental approvals which are or may
be required,except as expressly set forth herein.
17.6. This Lease,together with all exhibits attached hereto and by this reference incorporated
herein,constitutes the entire agreement between Lessor and Lessee with respect to the
leasing of the Property.
17.7. Lessee may elect at any time to record a memorandum of this lease in the deed records of
Washington County. Lessor promptly shall execute such memorandum on request.
IN WITNESS WHEREOF,the Parties have executed this Lease to be effective as of the date
last executed.
LESSOR LESSEE
Tigard Area hamber of Commerce, Inc. City of Tigard
Print Name: Debbie Mollahan Print Name: Mart:Wine
As Its: As Its: City Manager
Date ���� Date: 57 - '=;�4
Approval as to Form:
9�
City Attorney
Exhibit A
Map of leased property
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