Res 1105 - Beautifcn Lease
COUNCIL BILL NO. 1367
RESOLUTION NO. 1105
A RESOLUTION AUTHORIZING EXECUTION OF A BEAUTIFICATION LEASE WITH
SOUTHERN PACIFIC TRANSPORTATION COMPANY.
WHEREAS, the city with the assistance of its dedicated citizens, has planted
trees on property owned by the Southern Pacific Transportation Company; and
WHEREAS, the subject property is along Front Street between the intersections
of W, Cleveland Street and Hardcastle Street, as more fully described herein; and
WHEREAS, it is in the interest of the city to execute a beautification lease with
Southern Pacific Transportation Company so that the trees can be maintained; NOW,
THEREFORE
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The Mayor is hereby authorized to sign an agreement with Southern
Pacific Transportation Company, a copy of which is attached hereto, and by this
reference, incorpora~rein, /\ /"7 /) J~ 2/- 72
Approved as to for~: 0 l~ ~
City Attorney Date
APPROVED: ?L1~ W ;-.LA~
FRED W. KYSER, -~OR
Passed by the Council
January 27, 1992
Submitted to the Mayor
January 28, 1992
January 28, 1992
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST: ;;lcu~~(
Mary Tenn t, City Recorder
City of Woodburn, Oregon
January 28, 1992
Page 1 - COUNCIL BILL NO. 1367
RESOLUTION NO. 1105
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HUBBARD.JPM/mw/122791/Hubbard-City of
Approved As To Form
By General Counsel
September 15, 1990
BEAUTIFICATION LEASE
M.P. 739.
THIS LEASE, made this _____ day of ,19 ,by and between
SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, (herein
"Lessor"). and CITY OF WOODBURN, a municipal corporation of the State of
Oregon, 491 North 3rd Street, Woodburn, OR 97071, (herein "Lessee");
WITNESSETH THAT:
1. PREMISES
Lessor hereby leases to Lessee the premises of Lessor located at or
near the city of Woodburn, County of Marion, State of Oregon, in the
approximate location illustrated on the print of Lessor's Drawing
(herein "Premises"), attached as Exhibit A and made a part hereof.
Lessor reserves for itself, its successors, assigns, and licensees, the
right to construct, maintain, and operate existing tracks and existing
and additional pipes, communication and power transmission lines, and
drainage ditches or facil ities located upon, over, and beneath the
Premises.
2. USE OF PREMISES
The Premises shall be used for beautification purposes only. No trees
shall be planted on the Premises without the prior written approval of
Lessor.
Any type of plantings under pole lines located within the Premises
shall be trimmed in such a manner as to prevent the fouling thereof, or
as may be required by Lessor. Should Lessee fail or refuse to trim any
plantings upon the Premises to Lessor's satisfaction, Lessor shall have
the right to perform such work at Lessee's expense.
Watering and irrigation shall be in such a manner that there will be no
fouling of Lessor's adjacent roadbed. An existing trickle-type
irrigation system is on the premises; no additional sprinkler-type
system shall be used upon the premises without prior approval of
lessor.
Lease area is not to be used for any type of park, picnic or parking
area and in this connection lessee will post no trespassing signs and
will enforce the no trespassing.
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3. TERM AND EFFECTIVE DATE
This Lease shall be for a term of thirty (30) days, (herein "Lease
Term"). commencing on December 1, 1991, (herein "Effective Date"), and
shall continue on a month-to-month tenancy basis until terminated by
either party hereunder.
4. TERMINATION
Notwithstanding the Lease Term, either party hereto may terminate this
Lease at any time without cause on thirty (30) days' advance written
notice to the other to that effect.
5. RENT
For the first year of this Lease commencing as of its Effective Date,
Lessee shall pay to Lessor as rent for the Premises the sum of TWO
HUNDRED FORTY DOLLARS ($240) per annum, payable annually in advance,
subject to adjustments as hereinafter provided.
Upon termination of this Lease, unless Lessee is then in default, any
unearned port ion of the rent paid in advance shall be refunded to
Lessee upon Lessee's written demand therefor if made within thirty (30)
days after termination.
A. Renta 1 Tax
Any privilege, sales, gross income, or other tax (not including
income tax) imposed upon the rents herein, or upon Lessor in an
amount measured by the rents, shall be paid by Lessee.
B. Rental Revision
Should this Lease continue in effect after one (1) year from the
Effective Date hereof, Lessor, without prior notice to Lessee,
shall adjust, upwards only, the rent then in effect based on the
"CPI Factor," which is defined herein as that percentage of
adjustment or fluctuation to the nearest one-tenth of one percent
established during the twelve-month period immediately preceding
the date the revi sed rent is to commence, as stated in the
Consumer Price Index, Urban Wage Earners and Clerical Workers,
U.S. City Average, All Items (1967 = 100). published by the
United States Department of Labor, Bureau of Labor Statistics, or
any successor or substitute index published as a replacement for
that I ndex by sa i d Department or by any other Un ited States
governmental agency. Such rent shall be automatically revised on
the date immediately following one (1) year from the Effective
Date hereof, and on the same date each year thereafter, unless
the rent is subsequently increased for any reason during the
twelve-month period immediately preceding the anniversary date of
the last CPI-based revision, in which case the next CPI-based
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revlslon may be deferred to the next anniversary date where no
intervening rental increase occurred within said twelve-month
period.
If for any reasOn, the rent is not revised at such time or times
as herein specified, the rent shall continue to be subject to
revision by Lessor without prior notice to Lessee and, when so
revised, shall be retroactive to the date the revised rent should
have become effective.
Acceptance by Lessor of more than one (1) month's rent in advance
under this Section 5 shall not be construed in any way as a
modification of the month-to-month tenancy referred to in Section
3 hereof or as a waiver by Lessor of its right to terminate at
any time without cause under Section 4 hereof.
6. SUBTERRANEAN FACILITIES
Lessee warrants that Lessee has examined the Premises and accepts the
Premises in an "AS IS, WHERE IS" condition, with all faults and with
full knowledge of the physical condition of the Premises, of all zoning
and other land use laws and regulations affecting the Premises, and of
the conditions, restrictions, encumbrances and all matters of record
relating to the Premises.
There may be subterranean
notwithstanding the absence of
their existence.
facilities within the Premises
markers, monuments, or maps indicating
7. NO PERMANENT IMPROVEMENTS
The genera 1 contour of the Premi ses sha 11 not be changed. No
excavation work shall be performed upon the Premises, nor shall any
permanent-type improvements or facilities be installed or constructed
thereon.
8. LIENS
Lessee shall fully pay for all materials joined or affixed to the
Premises and shall pay in full all persons who perform labor thereupon.
Lessee shall not permit or suffer any mechanics' or materialmen's liens
of any kind or nature to be enforced against the Premises for any work
done or materials furnished thereon at Lessee's request.
9. INOEMNITY
Lessee insofar as it lawfully may, shall release, defend (with counsel
sat i sfactory to Lessor) and indemn ify Lessor from and against all
liability, cost, and expense for loss of or damage to property, and for
any injury to or death of any person (including, but not limited to,
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,
the property and employees of each party hereto) when arising or
resulting from:
(a) the use of the Premises by Lessee, its agents, employees,
invitees, or licensees;
(b) the location or condition of the Premises or any part thereof; or
(c) breach of the provisions of this Lease by Lessee;
regardless of whether such liability, cost or expense is caused or
contributed to by the negligence, active or passive, of Lessor.
The term "Lessor," as used herein, shall include the successors,
assigns, and affiliated companies of Lessor and any other railroad
company that may be lawfully operating upon Lessor's tracks.
Lessee, upon request, shall provide Lessor with certified copies of
insurance in form and amounts satisfactory to Lessor, insuring the
liability of Lessee hereunder.
10. ENVIRONMENTAL IMPAIRMENT
Lessee, at Lessee's expense, shall comply with all applicable laws,
regulations, rules and orders, regardless of when they become or became
effective, including without limitation those relating to construction,
grading, signage, health, safety, noise, environmental protection,
waste disposal, and water and air quality, and shall furnish
satisfactory evidence of such compliance upon request of Lessor.
Should any discharge, leakage, spillage, emission, or pollution of any
type occur upon or from the Premises due to Lessee's use and occupancy
thereof, Lessee, at Lessee's expense, shall clean all property affected
thereby to the satisfaction of Lessor and any governmental body having
jurisdiction thereover.
Lessee insofar as it lawfully may, shall indemnify, hold harmless and
defend Lessor from and against all liability, claim, cost and expense
(including without limitation any fines, penalties, judgments,
litigation costs, attorneys' fees, and consulting, engineering and
construction costs) incurred by Lessor as a result of Lessee's breach
of this section, or as a result of any such discharge, leakage,
spillage, emission or pollution, regardless of whether such liability,
cost or expense arises during or after the Lease Term, and regardless
of whether such liability, cost and expense are caused or contributed.
to by the negligence, active or passive, of Lessor.
11. NON-INTERFERENCE WITH FACILITIES
Lessee's use of the Premises shall not interfere with the
reconstruction, maintenance, repair, or use of any railroad facility,
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drainage ditch (including the natural flow of water therethrough), or
related facilities which may be located upon, over, or beneath the
Premises.
12. UTILITIES
Lessee shall arrange and pay for all utilities, including without
limitation, water, power, heat, garbage, communications and sewer
services to be used in connection with this Lease.
If Lessor contracts with a util ity company to provide access for
service to Lessee at the Premises for Lessee's sole use, Lessee shall
pay to Lessor a minimum sum of $350.00 upon receipt of bill therefor to
partially defray administrative costs.
13. RESTORATION OF PREMISES
Upon the termination of this Lease, Lessee shall remove from and off
the Premises all property owned or controlled by Lessee and restore the
Premises to a condition satisfactory to Lessor; and, upon failure to do
so, Lessor may perform such work at Lessee's expense. Lessee agrees to
pay Lessor all expenses incurred by Lessor in connection with such work
upon receipt of bill therefor.
14. NON-WAIVER
Lessee's failure to enforce or exercise its rights with respect to any
provision hereof shall not be construed as a waiver of such rights or
of such provision. Acceptance of rent or any other sum shall not be a
waiver of any preceding breach by Lessee of any provision hereof,
regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
15. ASSIGNMENT
Lessee shall not assign or encumber Lessee's interest in this Lease or
in the Premises, or sublease all or any part of the Premises.
16. RENT LESS THAN FAIR RENTAL VALUE
Lessee expressly acknowledges that Lessor is entitled to the fair
rental value of the Premises as measured by their highest and best use,
and that the rent under this Lease is less than such fair rental value.
Lessee further expressly acknowledges that Lessor is under no
obligation to continue to lease the Premises to Lessee if Lessor, at
any time, desires, in Lessor's sole discretion, to use the Premises for
any other purpose whatsoever.
As part consideration for Lessor's agreement to lease the Premises to
Lessee, Lessee expressly covenants:
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(a) to cooperate actively, fully and publicly in surrendering
possession of the Premises to Lessor when the Lease is
terminated for any reason whatsoever; and
(b) to defend and indemnify Lessor from and against all
1 iabi 1 ity, cost and expense which Lessor may incur in
obtaining possession of the Premises at the time of such
termination as a result of Lessee's breach of this section.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in duplicate
the day and year first hereinabove written.
SOUTHERN PACIFIC TRANSPORTATION COMPANY
By:
Title:
CITY OF WOODBURN ~A A AfJ -' _
By: :r~ tAl ~
Title: fl7a.jtJr
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