Coe Manufacturing Company - Potso Dog Park s � 1"Ai Dau _
CITY OF TIGARD
October 30, 2003 OREGON
James A. Wojtila
Chief Finance Officer
Coe Manufacturing Company
609 Bank Street/PO Box 520
Painesville, OH 44077
Re: Potso Dog Park—Lease Addendum
Dear Mr. Wojtila:
Attached is an executed copy of the Amendment to Lease related to the Ground Lease for the
Tigard Dog Park, "Potso Dog Park."
I have reviewed the Ground Lease dated May 14, 2002, and have agreed with the interpretation
of Coe Manufacturing that Section 7, Title to Improvements, was not intended to provide the
City of Tigard with a Purchase Option for the premises. As a result, I have executed the
Amendment to Lease.
As always, the City of Tigard is extremely appreciative of Coe Manufacturing Company's
willingness to allow the City to site and maintain the Dog Park. The Park has been very popular
with our community and is a community asset.
Thank you for continuing to allow the City to lease the premises. I hope that this amendment
clears up the concern.
Sincerely,
William A. Monahan
City Manager
Enclosure
c: Tom Talbot
i,Wml6ilNe"ersV003%wq ila.dM
13125 SW Hall Blvd., Tigard, OR 97223(503)639-4171 TDD(503)684-2772
OCT-29-2003 14:39 COE MANUFACTURING 4406399563 P.02i02
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is executed by and between the undersigned Landlord
and Tenant as of the date(s) referenced below.
Landlord and Tenant are parties to that certain Ground Lease(the"Lease") dated.
May 14, 2002, in connection with the City of Tigard dog park leased premises described in
Exhibit A attached hereto. Landlord and Tenant wish to amend the Lease to clarify certain
matters.
1. Amendment, Landlord and Tenant acknowledge and agree that there is no
separate"Purchase Option for the Premises" or".Agreement for Ground Lease and Exclusive
Option to Purchase" entered into by Landlord and Tenant and that all references to the same in
the Lease are hereby removed from the Lease. Therefore, the second sentence of Section 7 of
the Lease is hereby amended to read as: "If this Lease shall expire or sooner terminate, title to
the Improvements shall automatically pass to, vest in, and belong to Lessor without further
action on the part of either party and without cost or charge to Lessor." Similarly, the first
sentence of Section 17 of the Lease is hereby amended to read as: "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."
2. Status of Lease. Except as expressly amended hereby, the Lease Agreement
remains in full force and effect and is hereby ratified and confirmed_
IN WITNESS WHEREOF, this Amendment has been executed as of the date and year
first above written.
LANDLORD:
Coe Manufacturing Company
By:
Its:
Date o xecution: October:�Z4 � 2003
TENANT:
The City of Tigard, an Oregon municipal
corporation
Its
Date of Execution: October 3 o , 2003
Page I AMENDMENT TO LEASE
TOTAL P.02
GROUND LEASE
Date: May , 2002
Lessor: Coe Manufacturing Company ( "Lessor")
Lessee: THE CITY OF TIGARD, an Oregon municipal corporation ("Lessee")
Lessor leases to Lessee, and Lessee leases from Lessor, the real property (the
"Premises") described in Exhibit A attached and incorporated in this Lease by this
reference.
The Premises are leased for a term (the "Term") of ten (10) years, commencing on the
date of this Lease and ending at midnight on May /J—, 2012.
Lessor and Lessee agree as follows:
Section 1. Project Conditions
1.1 Lessee intends to use the Premises as an off-leash dog park for the public
benefit, and will construct related improvements (the "Improvements") on, under, and
over the Premises
1.2 During the term of this Lease, Lessor may further encumber Lessor's interest in
the Premises provided that Lessee is, prior to such encumbrance, provided with a non-
disturbance agreement in form and content reasonably satisfactory to Lessee.
Section 2. Improvements, Repairs and Maintenance. Lessee shall be responsible for
the placement or construction of all improvements to the Premises necessary for the
permitted use, and shall be responsible for all maintenance of the Premises required to
maintain the Premises in a safe and healthful condition, including but not limited to the
mowing of the lawn area(s) as needed. Upon the initial installation of improvements,
and upon each and every occasion that the same be repaired or removed, Lessee shall
remove all debris and leave the ground surface in a neat and presentable condition,
buildings and improvements to be restored as near as possible to as good a condition
as the same were in prior to any such installation.
Section 3. Lease Consideration.
There is no monetary rent payable by Lessee. Lessee is not obligated to pay
property taxes or other assessments with regard to the Premises, which are the sole
responsibility of Lessor. Lessee shall perform the following acts as consideration for the
Lease.
3.1 Improvements, Repairs and Maintenance. Lessee shall be responsible for the
placement or construction of all improvements to the Premises necessary for the
permitted use, and shall be responsible for all maintenance of the Premises required to
maintain the Premises in a safe and healthful condition, including but not limited to the
mowing of the lawn area(s) as needed. Upon the initial installation of improvements,
and upon each and every occasion that the same be repaired or removed, Lessee shall
remove all debris and leave the ground surface in a neat and presentable condition,
buildings and improvements to be restored as near as possible to as good a condition
as the same were in prior to any such installation.
3.2 Name of Dog Park. The Lessee agrees that it shall designate the name of the
dog park to be operated within the Premises by officially naming the same "Potso Dog
Park" and will, during the term of this Agreement, maintain one or more signs on the
Premises identifying the Premises by said name.
3.3 Additional Consideration. As additional consideration for the easement granted
by this Agreement, the Lessee agrees that it shall aggressively pursue such property
tax relief as may be available for the property of which the Premises is a part. The
obligation of the Lessee to pursue such tax relief shall be limited to the making of timely
and appropriate application(s), and prosecuting administrative appeals from any denial
of such application(s), but the Lessee shall not be obligated to initiate any court or other
action in the event such administrative appeals are denied. Lessor acknowledges that
Lessee has no obligation to pay property taxes or assessments relating to the property
of which the premises are a part; therefore, the consideration of Lessee for this Lease
shall not be increased or decreased as a result of obtaining, or failing to obtain, property
tax relief in accordance with this Section 3.3.
Section 4. Use
4.1 Lessee shall use the Premises for the purposes of construction, reconstruction,
operation, and maintenance of an off-leash dog park for the use and benefit of the
general public on, over, under and across the Premises. The Premises shall be open to
the general public on a daily basis except Monday through Friday between the hours of
6:00 AM and 4:30 PM. In addition, the Premises shall be open to the public on every
legal holiday, observed by Lessor, which occurs Monday through Friday. On Monday
through Friday of each week (except for legal holidays observed by Lessor) Lessor also
grants to Lessee, for the use of persons accessing the Premises, the use of sixteen (16)
designated parking spaces. These designated parking spaces are located on the
property owned by Lessor of which the Premises are a part, and are identified in the
drawing attached as Exhibit "B" and incorporated herein (the "Parking Spaces").
Lessee shall install on the Lessor's property signs or other means of identifying the
Parking Spaces, in a form, at one or more locations, and with content (which shall
include appropriate warnings permitting towing away of vehicles improperly using the
Parking Spaces) acceptable to Lessor in the exercise of Lessor's reasonable discretion.
On legal holidays observed by Lessor and each Saturday and Sunday, members of the
general public using the Premises may park in any unoccupied parking space on the
Lessor's property. Lessee shall be responsible for enforcement of the restrictions on
use of the Parking Spaces and other parking spaces on the Lessor Property contained
herein. The limitations on the times of permitted use of the Premises and the Parking
Spaces are intended to promote public safety and avoid interference and conflicts with
the operation of the Lessor's business facility located on Lessor's property.
Section 5. Liens
5.1 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 thirty (30)
days after the date of filing the same, by either payment, deposit, or bond.
5.2 Nothing in this Lease shall be deemed to be, or be construed in any way as
constituting, the consent or request of Lessor, express or implied, by inference or
otherwise, to any person, firm, or corporation for the performance of any labor or the
furnishing of any materials for any construction, rebuilding, alteration, or repair of or to
the Premises or to the Improvements, or as giving Lessee any right, power, or authority
to contract for or permit the rendering of any services or the furnishing of any materials
that might in any way give rise to the right to file any lien against Lessor's interest in the
Premises or against Lessor's interest, if any, in the Improvements. Lessee is not
intended to be an agent of Lessor for the construction of Improvements on the
Premises. Lessor shall have the right to post and keep posted at all reasonable times
on the Premises and on the Improvements any notices that Lessor shall be required to
post for the protection of Lessor and of the Premises and of the Improvements from any
such lien. The foregoing shall not be construed to diminish or vitiate any rights of
Lessee in this Lease to construct, alter, or add to the Improvements.
Section 6. Repairs and Maintenance
6.1 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.
6.2 Lessor shall not be required to furnish to Lessee any facilities or services of any
kind whatsoever during the Term, such as, but not limited to, water, steam heat, gas,
electricity, and power. Lessor shall in no event be required to make any alterations,
rebuildings, replacements, changes, additions, improvements, or repairs during the
Term.
Section 7. 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. If this Lease shall expire or sooner
terminate without exercise by Lessee or Lessor of the Purchase Option for the Premises
provided in the Agreement for Ground Lease and Exclusive Option to Purchase made
by the parties, title to the Improvements shall automatically pass to, vest in, and belong
to Lessor without further action on the part of either party and without cost or charge to
Lessor. During the Term, Lessee shall be entitled for all taxation purposes to claim cost
recovery deductions and the like on the Improvements.
Section 8. No Waste
Lessee shall not do or suffer any waste or damage, disfigurement, or injury to the
Premises or to the Lessor's property on which the Parking Spaces are located.
Section 9. Assignment and Subletting
9.1 Lessee shall not sell, assign, or in any other manner transfer this Lease or any
interest in this Lease or the estate of Lessee under this Lease without the prior consent
of Lessor which may be withheld or conditioned in Lessor's absolute discretion.
Section 10. Default; Remedies
10.1 The occurrence of any one or more of the following events of default constitutes
a breach of this Lease by Lessee:
10.1.1 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 thirty (30) days
after Lessor has given Lessee a notice specifying the same, or, in the case of a default
that can be cured but not within a period of thirty (30) days, if Lessee has not (1)
commenced curing such default within such thirty (30) day period; (2) notified Lessor of
Lessee's intention to cure the default; or (3) continuously and diligently completed the
cure of the default.
10.2 Upon the occurrence of an event of default, Lessor may terminate this Lease in
accordance with Section 11 hereof.
Section 11. Termination by Lessor
11.1 Lessor may terminate the lease granted herein at any time by written notice to
Lessee delivered not less than ninety (90) days prior to the date of termination specified
in the notice. In the event Lessor shall terminate the easement as provided herein,
Lessee shall vacate the Easement Area on or before the termination date specified in
Lessor's notice, and shall restore the Easement Area to as close to its original condition
as is practicable, subject to normal wear and tear.
Section 12. Quiet Enjoyment
Lessee, on observing and keeping all covenants, agreements, and conditions of this
Lease on its part to be kept, shall quietly have and enjoy the Premises during the Term
without hindrance or molestation by anyone claiming by, through, or under Lessor as
such, subject, however, to the exceptions, reservations, and conditions of this Lease.
Section 13. Surrender and Indemnity
13.2 Except as otherwise provided, Lessee, on the last day of the Term, shall
surrender and deliver up the Premises and all Improvements to the possession and use
of Lessor without fraud or delay, free and clear of all lettings and occupancies other
than subleases then terminable at the option of Lessor or subleases to which Lessor
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 Lessor, without any
payment or allowance whatever by Lessor on account of any Improvements on the
Premises.
13.3 When furnished by or at the expense of Lessee, the Improvements may be
removed by Lessee at termination of this Lease, provided, however, that the removal
will not injure the Premises or Lessor's adjacent property, or necessitate changes in or
repairs to the same. Lessee shall pay or cause to be paid to Lessor the cost of repairing
any damage arising from such removal and restoration of the Premises to their
condition before such removal.
13.4 Lessor shall not be responsible for any harm, loss or damage to persons,
animals, the Improvements or any other property owned by Lessee or any member of
the public occurring on the Premises or on Lessor 's adjacent property.
13.5 To the extent permitted by statute and the Oregon Constitution, Grantee agrees
to indemnify and hold harmless the Grantor from any and all claims, harm, loss and
damage arising from the use of the Easement Area by the Grantee and the general
public, excluding any claims, harm, loss and damage that may be a result of the gross
negligence or intentional act of Grantor, its agents, representatives and assigns. At all
times during the existence of the easement, The City will carry public liability insurance
which shall name Grantor as an additional insured as to claims which may arise from
use of the Easement Area or the Grantor property pursuant to the Agreement.
13.6 The provisions of this section shall survive any termination of this Lease.
Section 14. No Representations
14.1 Lessee acknowledges that it has examined the Premises and that no
representations as to the condition of the Premises have been made by Lessor or any
agent or person acting for Lessor (except as expressly provided in this Lease). Before
any construction commences on the Premises, Lessee shall conduct tests of the
subsurface and soil conditions to ascertain the suitability of the Premises for the
contemplated Project and shall furnish such fill and take such other steps as may be
required before the commencement of construction. Lessor shall have no liability
because of, or as a result of, the existence of any subsurface or soil condition, either on
the Premises or on adjacent land, that might affect Lessee's construction.
Section 15. Notices
15.1 Any notice required or permitted by the terms of this Lease shall be deemed
given if delivered personally to an officer of the party to be notified or sent by United
States registered or certified mail, postage prepaid, return-receipt requested, and
addressed as follows:
If to Lessor: Coe Manufacturing company
7930 SW Hunziker Road
Tigard, Oregon 97223
If to Lessee: The City of Tigard
13125 SW Hall Boulevard
Tigard, Oregon 97223
or such other addresses as may be designated by either party by written notice to the
other. Except as otherwise provided in this Lease, every notice, demand, request, or
other communication shall be deemed to have been given or served on actual receipt.
Section 16. 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).
Section 17. Entire Agreement
This Lease and the Agreement for Ground Lease and Exclusive Option to Purchase
contain 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 Lessor
that there are no verbal agreements, representations, warranties, or other
understandings affecting this Lease.
Section 18. Applicable Law
This Lease shall be governed by, and construed in accordance with, the laws of the
state of Oregon.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed
by their duly authorized officers.
"LESSOR" State of Oregon
County of Washington
By:
Subscribed and sworn to
Print Name: r (or affirmed before me) this
Name: CC /4 day of /�' , 2002
Title: �/p��'v_e uv�r.-F-� �,,i.-f by QAn kwk'e��
Notary Publi �S
OFFICIALSEAL My commission expires on /D
G BEER A GiASTON
NOTARY In SUC.ORE M
OMMIMI N NO.927908
"LESSEE" State of Oregon
County of Washington
THE CITY OF TIGARD, an Oregon
municipal corporation Subscribed and sworn to
(or affirmed before me)this
By: 14 day of , 2002
by � jllja ,�. �nd`�ar�
Print Name: i � ��,.. v,v �,,-..�
Nam
Notary Public
Title: f -('i if"VA 6 ele My commission expires on /b-/D-,0 3
OFFICIAL SEAL
GREER A GiASTON
NOTARY PUBLIC-OREGON
COMMarY cbNIMMSIONONP�OCT. 0.200.9
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DOG PARK GROUND LEASE
Easement to construct and to maintain a Dog Park over the following described property
Located in the Section 1, Township 2 South, Range 1 West, Willamette Meridian, City of
Tigard, Washington County, Oregon described as follows:
Beginning at the Southeast corner of the property described as Parcel 1 in deed recorded
in Deed Book 439 page 401 of the Washington County Deed Records; thence N 42° 12"
11"W, along the southerly line of said deed, a distance of 446.00 feet; thence N 23° 00'
00"E a distance of 20.00 feet; thence N 84° 30' 00"E a distance of 44.55 feet; N 41'
00' 00" E a distance of 206.20 feet; thence N 21' 30' 00" E a distance of 118.50 feet to
the extension of the edge of asphalt; thence S 61' 00' 00"E, along the edge of asphalt
and the extension there of to, a distance of 363.41 feet tothe easterly line of said deed;
thence S 29° 21' 49"W, along said easterly line, a distance of 508.02 feet to the point of
beginning.
Containing 3.79 acres.
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