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Res 1365 - Lease Agmt WVR COUNCIL BILL NO. 1726 RESOLUTION NO. 1365 A RESOLUTION ENTERING INTO A LEASE AGREEMENT WITH WILLAMETTE VALLEY RAILWAY COMPANY FOR CITY OF WOODBURN PROPERTY AND AUTHORIZING THE MAYOR TO SIGN SUCH AGREEMENT. WHEREAS, Willamette Valley Railway Company agreed to terminate a request for Southern Pacific Property upon which a portion of the property at 121 "B" Street for which the City of Woodburn will enter into a commercial lease and purchase agreement, and WHEREAS, Willamette Valley Railway Company still has a need for property near its trackage in the City of Woodburn, and WHEREAS, the City of Woodburn has property near the trackage of the Willamette Valley Railway Company that meet its need, and WHEREAS. the City of Woodburn has prepared a lease agreement for this property; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into a lease agreement with Willamette Valley Railway Company. A copy of said agreement is attached hereto as Attachment" A" and, by this reference, incorporated herein. Section 2. That the Mayor of the City of Woodburn is authorized to sign said agreement on behal~f tJlr City. ~ r.- Z 0 - C1t Approved as to for~:X-L tJivG \0 ( City Attorney APPROVED: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: /1~~ Mary ennant, City Recorder City of Woodburn, Oregon June 25, 1996 June 25. 1996 Page 1 - COUNCIL BILL NO. 1726 RESOLUTION NO. 1365 -""--."....-..- 1 DUPLlCA TE ORIGINAL COpy t OF 2 COMMERCIAL LEASE Date: AUGUST 1, 1996 Between: CITY OF WOODBURN a municipal corporation 270 Montgomery Street Woodburn, Oregon 97071 ("Landlord") And: Willamette Valley Railway Company an Oregon corporation 635 N. Walnut Independence, Oregon 97351 ("Tenant") Landlord leases to Tenant and Tenant leases from Landlord the following described property (the "Premises") on the terms and conditions stated below: All of lot 8 and the West 25 feet of Lot 9, Block 5, WOODBURN PACKING COMPANY ADDITION to Woodburn, situated in Section 18, Township 5 south, Range 1 West, Willamette Meridian, Marion County, Oregon: SAVE AND EXCEPT, a strip of land 60 feet wide; 30 feet on each side of the center line of the curved track connecting the tracks of the Oregon and California Railroad and the Oregonian Railroad as said curve has been staked out and located by J. H. Robb on or about the 1st day of July 1891 said curve being a ten degree curve intersecting the East line of Block six (6t of said addition at a point Forty-eight (48t feet from the North East corner of said Block six (6t; thence running Northerly and intersecting the West line of Block five (5t in said addition at a point one hundred and fifteen (115) feet South Westerly from the North corner of said Block five (5t as recorded in that Warranty Deed recorder October 26, 1891 in Vol. 49, Page 273, Marion County Deed Records. There is an approximately 500 square foot storage shed on the property that is divided into two rooms. The room to the south will be utilized by the lessee while the lessor will retain use of the room to the north. Section 1. Occupancy. 1.1 Original Term. The term of this lease shall commence August 1, 1996, and continue through June 30, 1997, unless sooner terminated as hereinafter provided. Page 1 - Commercial Lease "-~ ,.' ..,,~,._.._.~........_,_....,"'_ "_""'__~', ..., _ ~ __'~' ,_. _u_....u._..,..."._,,,-"'_w,...~__._.._~_.,,.~.__,,.;_ ... DUPLlCA TE ORIGINAL COpy 1 OF 2 1.2 Possession. Tenant's right to possession and obligations under the lease shall commence on August 1, 1996. 1.3 Renewal Option. If the lease is not in default at the time each option is exercised or at the time the renewal term is to commence, Tenant shall have the option to renew this lease for successive terms of one year each, as follows: (1 ) Each of the renewal terms shall commence on the day following expiration of the preceding term. (2) The option may be exercised by written notice to Landlord given not less than 90 days prior to the last day of the expiring term. The giving of such notice shall be sufficient to make the lease binding for the renewal term without further act of the parties. Landlord and Tenant shall then be bound to take the steps required in connection with the determination of rent as specified below. (3) The terms and conditions of the lease for each renewal term shall be identical with the original term except for rent which shall be adjusted as provided herein. Section 2. Rent. 2.1 Base Rent. During the original term, Tenant shall pay to Landlord as base rent the sum of $2,400 per year. Rent shall be payable upon execution of this lease and on the first day on any renewal terms. 2.2 Adjustment. The base rent provided in Section 2.1 shall be increased or decreased on July 1 each year by a percentage equal to the percentage change in the Consumer Price Index published by the United States Bureau of Labor Statistics of the United States Department of Labor. Comparisons shall be made using the index entitled U.S. City Average--AII Items and Major Group Figures for All Urban Consumers (1982-84 = 100), or the nearest comparable data on changes in the cost of living if such index is no longer published. Section 3. Use of the Premises. 3.1 Permitted Use. The Premises shall be used for the storage of materials and supplies related to the operation of the Willamette Valley Railway Company and for no other purpose. Page 2 - Commercial Lease ~.. . ..-...' .. ..-,.-. DUPLlCA TE ORIGINAL COpy 1 OF 2 4.2 Restrictions on Use. In connection with the use of the Premises, Tenant shall: (1 ) Conform to all applicable laws and regulations of any public authority affecting the premises and the use, and correct at Tenant's own expense any failure of compliance created through Tenant's fault or by reason of Tenant's use. (2) Refrain from any activity that would make it impossible to insure the Premises against casualty, would increase the insurance rate, or would prevent Landlord from taking advantage of any ruling of the Oregon Insurance Rating Bureau, or its successor, allowing Landlord to obtain reduced premium rates for long-term fire insurance policies, unless Tenant pays the additional cost of the insurance. (3) Refrain from any use that would be reasonably offensive to other tenants or owners or users of neighboring premises or that would tend to create a nuisance or damage the reputation of the premises. (4) Tenant shall not cause or permit any Hazardous Substance to be spilled, leaked, disposed of, or otherwise released on or under the Premises. Tenant shall comply with all Environmental Laws and exercise the highest degree of care in the use, handling, and storage of Hazardous Substances and shall take all practicable measures to minimize the quantity and toxicity of Hazardous Substances used, handled, or stored on the Premises. Upon the expiration or termination of this Lease, Tenant shall remove all Hazardous Substances from the Premises. The term Environmental Law shall mean any federal, state, or local statute, regulation, or ordinance or any judicial or other governmental order pertaining to the protection of health, safety or the environment. The term Hazardous Substance shall mean any hazardous, toxic, infectious or radioactive substance, waste, and material as defined or listed by any Environmental Law and shall include, without limitation, petroleum oil and its fractions. Section 4. Property Taxes. Tenant shall pay as due all taxes on its personal property located on the Premises. Tenant shall pay as due all real property taxes levied against the Premises. As used herein, real property taxes includes any fee or charge relating to the ownership, use, or rental of the Premises, other than taxes on the net income of Landlord or Tenant. Page 3 - Commercial Lease ..,...- 10 . DUPLlCA TE ORIGINAL COpy 1 OF 2 Section 5. Liability and Indemnity. 5.1 Liens Except with respect to activities for which Landlord is responsible, Tenant shall pay as due all claims for work done on and for services rendered or material furnished to the Premises, and shall keep the Premises free from any liens. 5.2 Indemnification. Tenant shall indemnify and defend landlord from any claim, loss, or liability arising out of or related to any negligent activity of Tenant on the Premises or any condition of the Premises in the possession or under the control of Tenant. landlord shall have no liability to Tenant for any injury, loss, or damage caused by third parties, or by any condition of the Premises except to the extent caused by landlord's negligence or breach of duty under this lease. 5.3 Liability Insurance. Before going into possession of the Premises, Tenant shall procure and thereafter during the term of the lease shall continue to carry the following insurance at Tenant's cost: comprehensive general liability insurance in a responsible company with limits of not less than $1,000,000 for injury to one person, $1,000,000 for injury to two or more persons in one occurrence, and $300,000 for damage to property. Certificates evidencing such insurance and bearing endorsements requiring 10 days' written notice to landlord prior to any change or cancellation shall be furnished to landlord prior to Tenant's occupancy of the property. Section 6. Quiet Enjoyment; Mortgage Priority. 6.1 landlord's Warranty. landlord warrant~ that it is the owner of the Premises and has the right to lease them. landlord will defend Tenant's right to quiet enjoyment of the Premises from the lawful claims of all persons during the lease term. Section 7. Assignment and Subletting. No part of the Premises may be assigned, mortgaged, or subleased, nor may a right of use of any portion of the property be conferred on any third person by any other means, without the prior written consent of landlord. Section 8. Default. The following shall be events of default: Page 4 - Commercial lease __._..-__. ,.___.... .... h'~"'_"_'''' ~.......... .......-....---. ." DUPLlCA TE ORIGINAL COpy 1 OF 2 8.1 Default in Rent. Failure of Tenant to pay any rent or other charge within 10 days after it is due. 8.2 Default in Other Covenants. Failure of Tenant to comply with any term or condition or fulfill any obligation of the lease (other than the payment of rent or other charges) within 20 days after written notice by Landlord 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 20-day period, this provision shall be complied with if Tenant begins correction of the default within the 20-day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 8.3 Insolvency. Insolvency of Tenant; an assignment by Tenant for the benefit of creditors; the filing by Tenant of a voluntary petition in bankruptcy; an adjudication that Tenant is bankrupt or the appointment of a receiver of the properties of Tenant; the filing of any involuntary petition of bankruptcy and failure of Tenant to secure a dismissal of the petition within 30 days after filing; attachment of or the levying of execution on the leasehold interest and failure of Tenant to secure discharge of the attachment or release of the levy of execution within 10 days shall constitute a default. 8.4 Abandonment. Failure of Tenant for 90 days or more to occupy the Premises for one or more of the purposes permitted under this lease, unless such failure is excused under other provisions of this lease. Section 9. Termination on Default. In the event of a default the lease may be terminated at the option of Landlord by written notice to Tenant. Whether or not the lease is terminated by the election of Landlord or otherwise, Landlord shall be entitled to recover damages from Tenant for the default, and Landlord may reenter, take possession of the premises, and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages and without having accepted a surrender. Section 10. Termination Without Cause. This lease shall be terminable by either Landlord or Tenant at any time without cause on thirty days' advance written notice to the other. If the lease is terminated without cause by either party, Landlord shall return to Tenant that portion of the base rent representing the months remaining in the lease term as calculated on a prorated basis. Section 11. Surrender at Expiration. Upon expiration of the lease term or earlier termination on account of default, Tenant shall surrender the Premises to Landlord. Page 5 - Commercial Lease . ". .. , ----r-.........--..-. DUPLlCA TE ORIGINAL COpy 1 OF 2 Section 12. Miscellaneous 12.1 Nonwaiver. Waiver by either party of strict performance of any provision of this lease shall 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. 12.2 Attorney Fees. If suit or action is instituted in connection with any controversy arising out of this lease, the prevailing party shall be entitled to recover in addition to costs such sum as the court may adjudge reasonable as attorney fees at trial, on petition for review, and on appeal. 12.3 Notices. Any notice required or permitted under this lease shall be given when actually delivered or 48 hours after deposited in United States mail as certified mail addressed to the address first given in this lease or to such other address as may be specified from time to time by either of the parties in writing. 12.4 Entry for Inspection. Landlord shall have the right to enter upon the Premises at any time to determine Tenant's compliance with this lease. THE CITY OF WOODBURN, an Oregon municipal corporation BY(~_~o/~ Nancy . Kirksey, Mayor / / / / STATE OF OREGON ss. County of Marion On this ~&- f11 day of ~ ' 1996, personally appeared before me Nancy A. Kirksey, the signer of t e within instrument, who duly acknowledged to me that she is the Mayor of the City of Woodburn, an Oregon municipal corporation, and that he executed the same on behalf of said corporation. ~~K~ Nota Public for Oregon Commission Expiring: t /" (,;, - 97 OFFICIAL SEAL . , KAY L. VESTAL , ) NOTARY PUBLIC-OREGON ~i ',.,' COMMISSION NO, 025549 ~ ~~ 90MMISSlON EXPIRES AUG 6, 1997 Page 6 - Commercial Lease .._. ".,.- . ...-.--'" ..-.. _.-.._~",." ._.. ..... .. " DUPLlCA TE ORIGINAL COpy 1 OF 2 THE CITY OF WOODBURN, an Oregon municipal orporati~ By: ~ IA Mary Te ant, City Recorder STATE OF OREGON WILLAMETTE VALLEY RAILWAY COMPANY, an Oregon corporation By: Its: STATE OF OREGON ss. County of Marion On this day of , 1996, personally appeared before me . the signer of the within instrument, who duly acknowledged to me that she/he is the , of Willamette Valley Railway Company, an Oregon municipal corporation, and that she/he executed the same on behalf of said corporation. Notary Public for Oregon Commission Expiring: Page 7 - Commercial Lease uT-u uU _ u _. , . '" 'w, ',_ >...",__~"",,,,.__,"_.....,...,.,,,.,__,,.<.,__.._~_...~,,,.."........~-",<-""",~'"'-""--""'"""-'-~ .......