LEASE AGREEMENT THIS AGREEMENT, made this day of ...
LEASE AGREEMENT THIS AGREEMENT, made this day of September, 2017, between City of Newport, a municipal corporation of the State of Oregon, hereinafter designated as CITY, and Lincoln County School District, hereinafter designated as DISTRICT. The CITY and DISTRICT have previously executed a Memorandum of Agreement dated August 10, 2017, stating their mutual intent and describing the terms and conditions for the future use(s) of the subject property that would serve the best interests of the parties, now therefore WITNESS ETH: CITY, in consideration of and under the terms, covenants, and conditions hereinafter set forth, hereby leases and grants unto the DISTRICT a portion of the premises commonly known as 1212 NE Fogarty Street, Newport, Oregon, comprising the site of the swimming pool, and including buildings and improvements immediately surrounding same, previously operated by the City of Newport and consisting of approximately 1.64 acres. The leased area is depicted on Attachment A, as may be adjusted to accommodated improvements to be constructed as agreed between the parties. 1.
TERM: This Lease Agreement shall commence on the 1st day of October, 2017, and terminate at 11:59 o’clock P.M. on the 3Qth day of September, 2116, unless earlier terminated as provided herein.
2.
GENERAL PURPOSE: The parties to this Agreement expressly understand that the demised premises shall be used for the following purposes, and no other, without prior written consent of CITY: administrative office space, including necessary supplies and records storage, information technology operations, early childhood education and Homeless Literacy Project.
3.
CONSIDERATION: Consideration for entry into this Lease Agreement is in the form of certain DISTRICT requirements for the performance of the described obligations of DISTRICT and to provide to the CITY the following: 3.1
Improvements: DISTRICT agrees to undertake and complete, at DISTRICT’s expense, the improvements on-site and off-site of premises described herein, as follows: A. An additional four (4) parallel parking spaces on the East side of NE Big Creek Road and to the North of existing parallel parking spaces with signage indicating RESERVED FOR FOREST PARK USE; B. Create and install appropriate trailhead signage for Forest Park and the Coast to Bay Trial as approved by the CITY C. Install a new ‘catch-basin’ at the Southeast corner of NE Eads Street and NE 2’ Street; D. Replace the existing pedestrian continental crosswalk on NE Big Creek Road with a new crosswalk to the South, along the North side of NE 1 2th Street at the intersection of NE 12th Street, NE Fogarty Street, and NE Big Creek Road together with ADA required ramps; E. Install a sidewalk extension and a curb extension (‘dump-out’) on the West side of NE Big Creek Road and curbing and sidewalk on the East side of NE Big 1 Page
Lease Agreement-1212 NE fogarty Street
Creek Road at the site of the relocated pedestrian crossing; F. Install sidewalk extension (bump-out) and curbing on the South side of NE 2th Street, between NE Eads Street and NE Fogarty Street together with ADA required ramps; G. Install sidewalk and curbing along the East side of NE Fogarty Street beginning at NE 12th Street and continuing North along NE Big Creek Road to the Coast to Bay Trail access or as required on future construction drawings. H. Install a crosswalk along the South side of NE 12th Street, across NE Fogarty Street including pedestrian ramps; and I. Additional improvements, modifications and adjustments as agreed between the parties may be made as part of the final set of construction drawings for site work and building renovations. Said improvements described above are depicted on Attachment B for illustration purposes only and are not to scale. All described improvements herein shall be constructed as part of the renovation project and must be completed before occupancy permit is issued. Such improvements shall be designed in accordance with specifications provided by Newport Public Works Department and are subject to inspection and approval of City Engineer.
4.
3.2
Land Use Approvals: DISTRICT shall undertake and obtain, at DISTRICT’s sole expense, any and all land use approvals necessary to accomplish the anticipated change in use to the leased premises. At a minimum, it is anticipated that the following land use approvals will be required: A. Rezone the property from a P-3/Public Open Space zoning designation to a P 1/Public Structures zoning designation; and B. Obtain approval of a parking demand analysis establishing that the school related facilities currently possess (or will possess) off-street parking spaces sufficient to accommodate parking needs associated with existing and planned improvements
3.3
Payment: DISTRICT will pay to CITY $42,052.00 and CITY will rock and pave NE 11th Street and NE Fogarty Street where and as depicted on Attachment B. Payment is due after land use approvals are obtained by DISTRICT and City Engineer’s approval of plans for Street improvements. The rocking and paving by CITY will be completed as soon as practicable as part of an annual over-lay project of the CITY in the future.
USE OF PREMISES: 4.1
The DISTRICT shall use the Premises during the term of this Lease for Administrative office space, including necessary supplies and record storage, and early childhood education.
4.2
The DISTRICT shall regularly occupy and use the Premises for the conduct of DISTRICT’s business, and shall not abandon or vacate the Premises for more than 30 days without written approval of CITY.
4.3
The DISTRICT will not make any unlawful, improper or offensive use of the Premises;
2Page Lease Agreement-1212 NE Fogarty Street
the DISTRICT will not suffer any strip or waste thereof; the DISTRICT will not do anything or permit anything to be done upon or about the Premises in any way tending to create a nuisance; and the DISTRICT will not expand the building ‘foot-print’. 4.4
The DISTRICT will not allow the premises at any time to fall in to such a state of repair or disorder as to increase the fire or safety hazards thereon; and the DISTRICT will not store gasoline or other highly combustible materials or hazardous materials on the premises at any time.
4.6
The DISTRICT shall comply at DISTRICT’s own expense with all laws and regulations of any municipal, county, state, federal or other public authority respecting the use of the Premises. These include, without limitation, all laws, regulations and ordinances pertaining to air and water quality, hazardous materials as herein defined, waste disposal, air emissions, and other environmental matters. As used herein, hazardous material means any hazardous or toxic substance, material, or waste, including but not limited to those substances, materials, and waste listed in the U.S. Department of Transportation Hazardous Materials Table or by the U.S. Environmental Protection Agency as hazardous substances and amendments thereto, petroleum products or such other substances, materials, and waste that are or become regulated under applicable local, state, or federal law.
4.7
DISTRICT shall not cause or permit any hazardous material to be brought upon, kept or used in or about the Premises by DISTRICT, its agents, employees, contractors, or invitees without the prior written consent of CITY, which consent will not be unreasonably withheld so long as DISTRICT demonstrates to CITY’s reasonable satisfaction that such hazardous material is necessary or useful to DISTRICT and will be used, kept, and stored in a manner that will comply at all times with all laws regulating any such hazardous material so brought upon or used or kept on or about the Premises.
5.
COMPLIANCE WITH LAW: The DISTRICT agrees that it will at its own expense, promptly observe and comply with all present and future laws, orders, regulations, rules, ordinances, and requirements of federal, state, county, and city governments with respect to the use, care, and control of the lease premises.
6.
ASSIGNMENT OR SUBLEASE: The DISTRICT covenants that this Lease shall not be assigned and that no portion of the lease Premises will be sublet by the DISTRICT without written consent of CITY. However, DISTRICT may sub-let a portion of the leased premises to Early Intervention program operated by the DISTRICT or similar program with DISTRICT as a partner in operating the program.
7.
ACCESS BY CITY: The CITY or its representatives shall have free access to the Premises at reasonable times for the purpose of examining and inspecting the same. The CITY must provide DISTRICT with reasonable notice of such examination and inspection.
8.
INSURANCE: DISTRICT, priorto taking possession of the leased premises, shall provide and maintain for the duration of this Agreement, at its own cost and expense, the following insurance with insurance companies licensed in the State of Oregon, which insurance shall be 3IPage
Lease Agreement-1212 NE Fogarty Street
evidenced by certificates and/or policies as determined by CITY. As proof of insurance coverage DISTRICT shall furnish certificates of insurance to CITY. The certificates shall name the CITY as an additional insured. DISTRICT will notify CITY of cancellation or material change in coverage within 30 days. All such notices shall name CITY. The following insurances are required: General Liability Insurance: with a minimum limit of liability per occurrence of $5,000,000 for bodily injury, and $1,000,000 for property damage, with a total aggregate coverage of $5,000,000. This insurance shall include the following coverage: a. b. c.
Independent Contractor and Subcontractors Broad Form Contractual Additional coverage and limits may be required based upon the particular services contracted. If such additional coverage and limits are required for a specific contract, said requirements will be described in the “Special conditions” of the contract specifications.
9.
NO RECOURSE AND DEDUCTIBLES: The insurance companies issuing the policy or policies shall have no recourse against CITY (including its agents and agencies as aforesaid) for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above described insurance policies shall be assumed by, and be for the account of, and at the sole risk of DISTRICT.
10.
HOLD HARMLESS AND INDEMNIFICATION: DISTRICT agrees to protect, defend, indemnify and hold CITY and its officers, employees and agents free and harmless from and against any and all losses, penalties, damages, settlements, costs, charges, professional fees or other expenses or liabilities of every kind and character arising out of or relating to any and all claims, liens, demands, obligations, actions, proceedings or causes of action of every kind and character in connection with or arising directly or indirectly out of this Lease Agreement, and/or the performance hereof. Without limiting the generality of the foregoing, any and all such claims, etc., relating to personal injury, death, damage to property, defects in materials or workmanship, actual or alleged infringement of any patent, trademark, copyright, (or application of any thereof) or any other tangible or intangible personal or property right, or any actual or alleged violation of any applicable statute, ordinance, administrative order, rule or regulation, or decree of any court, shall be included in the indemnity hereunder. DISTRICT further agrees to investigate, handle, respond to, provide defense for and defend any such claims, etc., at its sole expense and agrees to bear all other costs and expenses related thereto, even if it (claims, etc.) is groundless, false or fraudulent.
11.
LIENS: The DISTRICT will not permit any lien of any kind, type or description to be placed or imposed upon the improvements, without the written consent of CITY, in which the Premises are situated, or any part thereof, or the land on which they stand.
12.
LITIGATION EXPENSE: In the event it is necessary an action at law or a suit in equity be brought to establish, obtain or enforce any right by either of the parties under this Lease Agreement, then the prevailing party in such action or suit or any appeal of a judgment therein shall be entitled to a reasonable attorney’s fee allowance as well as the costs and disbursements of the action or suit, including costs on any appeal.
4IPage Lease Agreement-1212 NE Fogarty Street
13.
DEFAULT: Neither party shall be in default under the Lease until written notice of the unperformed obligation has been given and that obligation remains unperformed after notice for fifteen (15) days in the case of a payment or for thirty (30) days in the case of other obligations. If the obligation cannot be performed within the thirty day period, there shall be no default if the responsible party commences a good faith effort to perform the obligation within such period and continues diligently to complete the performance. In case of a default the non-defaulting party may terminate this Lease with thirty (30) days prior written notice to the defaulting party, and it shall be entitled to recover damages or any other remedy provided by applicable law, or it may elect to perform the defaulting party’s obligation and recover from the defaulting party the costs plus interest at the legal rate for judgment.
14.
CASUALTY DAMAGE EARLY TERMINATION: If the DISTRICT elects to abandon or terminate this Lease, or if the Premises or improvements thereon are damaged or destroyed by fire or other casualty to such a degree that the Premises are unsuitable for the purpose leased as a result of the fire or other casualty the DISTRICT may elect to terminate this Lease Agreement and return to CITY the site in a condition as “clean and bare” ground. All costs of demolition and/or restoring the premises to “clean and bare” ground condition shall be solely the responsibility of DISTRICT.
15.
TERMINATION: In the event of default of obligations under this agreement, the non-defaulting party may terminate the Lease by giving to the defaulting party written notice of intent to terminate at least thirty (30) days prior to the effective date of termination. Said notice shall be delivered as specified in Section 22. The CITY agrees to provide to DISTRICT reasonable notice and time to cure default(s) before a termination notice is given. Should DISTRICT abandon the premises or otherwise terminate this Lease Agreement on or after October 1, 2020 and before September 30, 2116, then DISTRICT shall return the subject premises to CITY as “clean and bare” ground. All costs of demolition and/or restoring the premises to “clean and bare” ground shall be solely the responsibility of DISTRICT.
16.
MAINTENANCE AND REPAIRS: The DISTRICT shall be responsible for all routine maintenance, repairs and resultant costs due to its usual and customary use of the buildings and premises including but not limited to heating and air conditioning, flooring, glass (windows), and parking areas, in a manner consistent with City Building Code requirements.
-
In addition to routine maintenance, the DISTRICT shall be responsible for repairs occasioned by any damage caused by DISTRICT, its officers, agents, employees or permitted occupants and renovations necessary to keep the building(s) and premises in a condition which is acceptable to the CITY, and which otherwise meets all applicable fire, life, safety, and health codes. 17.
ALTERATIONS: It is agreed by the parties hereto, that the DISTRICT may wish to make certain alterations to the demised premises to facilitate and accommodate DISTRICT’s purposes and Plan Design specifications. DISTRICT shall not make any additions, alterations of a structural nature, or improvements in or to the demised premises prior to October 1, 2020 without prior written consent of the City Manager; such consent will not be unreasonably withheld. All additions, alterations and improvements made to the demised premises shall be at the sole expense of DISTRICT. DISTRICT shall have the right to remove its trade fixtures.
18.
UTILITIES: DISTRICT agrees to pay for any and all service or use charges in regard to sewer 5IPage
Lease Agreement-1212 NE Fogarty Street
and water assessments, together with all other utilities. 19.
QUIET ENJOYMENT: The DISTRICT, on performing the covenants and observing the conditions of this Lease, at all times during the term, shall have the peaceable enjoyment of the premises without hindrance or disturbance by the CITY, or any person claiming through or under it or any person having paramount title.
20.
CONDITIONS: This Lease is subject to the following conditions: 1) that DISTRICT is satisfied with a Title Report obtained by DISTRICT at DISTRICT’s expense; and 2) that if the DISTRICT fails to perform any of the covenants herein, then at the option of the CITY, this Lease Agreement shall terminate and CITY, without notice or demand, may re-enter the premises and remove all persons and effects therefrom without prejudice of any other remedies which might otherwise be used by the CITY for any breach of the DISTRICT’s covenants, subject to the Notice, Grace, and Cure provisions in Sections 13 and 15.
21
HOLDING OVER: Any holding over by the LESSEE after the expiration of the term of this Lease, or the term of any extension thereof, shall be a tenancy from month to month and not otherwise.
22.
NOTICES: Notice required to be given hereunder or any notice required to be given by law shall be in writing, and may be given by personal delivery or by registered mail, addressed to: CITY: City Manager City of Newport 169 SW Coast Hwy Newport, Oregon 97365
DISTRICT Superintendent Lincoln County School District P.O. Box 1110 Newport, Oregon 97365
or to either of them in any other manner prescribed by law. 23.
MERGER: The voluntary or other surrender of this Lease or a mutual cancellation hereof, shall not work a merger, and shall, at the option of CITY, terminate all or any existing subleases or sub-tenancies, or shall operate as an assignment to it of such subleases or sub-tenancies.
24.
TITLE: The CITY covenants that it has good title to the property and premises subject to this Lease Agreement.
25.
INTERPRETATION: All the covenants, agreements, conditions and terms contained in this Lease shall be binding upon, apply and inure to the benefit of the heirs, executors, administrators and assigns respectively of the CITY and the DISTRICT, and all of said covenants shall be construed as covenants running with the land.
26.
WAIVER: Failure of the CITY to insist upon the strict performance of the terms, covenants, agreements and conditions in this Lease contained, or any of them, shall not constitute or be construed as a waiver or relinquishment of the CITY’S right to hereafter enforce any such term, covenant, agreement, or condition, but the same shall continue in full force and effect.
27.
ENTIRE AGREEMENT: This lease agreement shall constitute the entire agreement between 6IPage
Lease Agreement-1212 NE F ogarty Street
the parties. Any prior understanding or representation of any kind preceding the date of this lease agreement shall not be binding upon either party except to the extent incorporated in this agreement. 28.
WARRANTIES: DISTRICT DOES ACKNOWLEDGE AND ACCEPT THAT THE PROPERTY IS CONVEYED IN A “WHERE IS, AS-IS” CONDITION. CITY MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION AS TO THE FITNESS FOR A PARTICULAR PURPOSE OR REGARDING ANY CONDITION OF THE PROPERTY OR PREMISES FOR THE SITE. CITY HAS MADE A GOOD FAITH EFFORT TO PROVIDE ALL RELEVANT DOCUMENTS AND RECORDS IN CITY’S POSSESSION TO THE DISTRICT REGARDING THE LEASED PREMISES.
IN WITNESS WHEREOF, the parties hereto enter into this Lease Agreement as of the day and year first above written. CITY OF NEWPORT:
LINCOLN COUNTY SCHOOL DISTRICT:
Spencer Nebel, City Manager
Tom Rinearson, Superintendent
APPROVED AS TO FORM: Steven E. Rich, Legal Counsel
Date
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TERM: This Lease Agreement shall commence on the 1st day of October, 2017, and terminate at 11:59 o’clock P.M. on the 3Qth day of September, 2116, unless earlier terminated as provided herein.
2.
GENERAL PURPOSE: The parties to this Agreement expressly understand that the demised premises shall be used for the following purposes, and no other, without prior written consent of CITY: administrative office space, including necessary supplies and records storage, information technology operations, early childhood education and Homeless Literacy Project.
3.
CONSIDERATION: Consideration for entry into this Lease Agreement is in the form of certain DISTRICT requirements for the performance of the described obligations of DISTRICT and to provide to the CITY the following: 3.1
Improvements: DISTRICT agrees to undertake and complete, at DISTRICT’s expense, the improvements on-site and off-site of premises described herein, as follows: A. An additional four (4) parallel parking spaces on the East side of NE Big Creek Road and to the North of existing parallel parking spaces with signage indicating RESERVED FOR FOREST PARK USE; B. Create and install appropriate trailhead signage for Forest Park and the Coast to Bay Trial as approved by the CITY C. Install a new ‘catch-basin’ at the Southeast corner of NE Eads Street and NE 2’ Street; D. Replace the existing pedestrian continental crosswalk on NE Big Creek Road with a new crosswalk to the South, along the North side of NE 1 2th Street at the intersection of NE 12th Street, NE Fogarty Street, and NE Big Creek Road together with ADA required ramps; E. Install a sidewalk extension and a curb extension (‘dump-out’) on the West side of NE Big Creek Road and curbing and sidewalk on the East side of NE Big 1 Page
Lease Agreement-1212 NE fogarty Street
Creek Road at the site of the relocated pedestrian crossing; F. Install sidewalk extension (bump-out) and curbing on the South side of NE 2th Street, between NE Eads Street and NE Fogarty Street together with ADA required ramps; G. Install sidewalk and curbing along the East side of NE Fogarty Street beginning at NE 12th Street and continuing North along NE Big Creek Road to the Coast to Bay Trail access or as required on future construction drawings. H. Install a crosswalk along the South side of NE 12th Street, across NE Fogarty Street including pedestrian ramps; and I. Additional improvements, modifications and adjustments as agreed between the parties may be made as part of the final set of construction drawings for site work and building renovations. Said improvements described above are depicted on Attachment B for illustration purposes only and are not to scale. All described improvements herein shall be constructed as part of the renovation project and must be completed before occupancy permit is issued. Such improvements shall be designed in accordance with specifications provided by Newport Public Works Department and are subject to inspection and approval of City Engineer.
4.
3.2
Land Use Approvals: DISTRICT shall undertake and obtain, at DISTRICT’s sole expense, any and all land use approvals necessary to accomplish the anticipated change in use to the leased premises. At a minimum, it is anticipated that the following land use approvals will be required: A. Rezone the property from a P-3/Public Open Space zoning designation to a P 1/Public Structures zoning designation; and B. Obtain approval of a parking demand analysis establishing that the school related facilities currently possess (or will possess) off-street parking spaces sufficient to accommodate parking needs associated with existing and planned improvements
3.3
Payment: DISTRICT will pay to CITY $42,052.00 and CITY will rock and pave NE 11th Street and NE Fogarty Street where and as depicted on Attachment B. Payment is due after land use approvals are obtained by DISTRICT and City Engineer’s approval of plans for Street improvements. The rocking and paving by CITY will be completed as soon as practicable as part of an annual over-lay project of the CITY in the future.
USE OF PREMISES: 4.1
The DISTRICT shall use the Premises during the term of this Lease for Administrative office space, including necessary supplies and record storage, and early childhood education.
4.2
The DISTRICT shall regularly occupy and use the Premises for the conduct of DISTRICT’s business, and shall not abandon or vacate the Premises for more than 30 days without written approval of CITY.
4.3
The DISTRICT will not make any unlawful, improper or offensive use of the Premises;
2Page Lease Agreement-1212 NE Fogarty Street
the DISTRICT will not suffer any strip or waste thereof; the DISTRICT will not do anything or permit anything to be done upon or about the Premises in any way tending to create a nuisance; and the DISTRICT will not expand the building ‘foot-print’. 4.4
The DISTRICT will not allow the premises at any time to fall in to such a state of repair or disorder as to increase the fire or safety hazards thereon; and the DISTRICT will not store gasoline or other highly combustible materials or hazardous materials on the premises at any time.
4.6
The DISTRICT shall comply at DISTRICT’s own expense with all laws and regulations of any municipal, county, state, federal or other public authority respecting the use of the Premises. These include, without limitation, all laws, regulations and ordinances pertaining to air and water quality, hazardous materials as herein defined, waste disposal, air emissions, and other environmental matters. As used herein, hazardous material means any hazardous or toxic substance, material, or waste, including but not limited to those substances, materials, and waste listed in the U.S. Department of Transportation Hazardous Materials Table or by the U.S. Environmental Protection Agency as hazardous substances and amendments thereto, petroleum products or such other substances, materials, and waste that are or become regulated under applicable local, state, or federal law.
4.7
DISTRICT shall not cause or permit any hazardous material to be brought upon, kept or used in or about the Premises by DISTRICT, its agents, employees, contractors, or invitees without the prior written consent of CITY, which consent will not be unreasonably withheld so long as DISTRICT demonstrates to CITY’s reasonable satisfaction that such hazardous material is necessary or useful to DISTRICT and will be used, kept, and stored in a manner that will comply at all times with all laws regulating any such hazardous material so brought upon or used or kept on or about the Premises.
5.
COMPLIANCE WITH LAW: The DISTRICT agrees that it will at its own expense, promptly observe and comply with all present and future laws, orders, regulations, rules, ordinances, and requirements of federal, state, county, and city governments with respect to the use, care, and control of the lease premises.
6.
ASSIGNMENT OR SUBLEASE: The DISTRICT covenants that this Lease shall not be assigned and that no portion of the lease Premises will be sublet by the DISTRICT without written consent of CITY. However, DISTRICT may sub-let a portion of the leased premises to Early Intervention program operated by the DISTRICT or similar program with DISTRICT as a partner in operating the program.
7.
ACCESS BY CITY: The CITY or its representatives shall have free access to the Premises at reasonable times for the purpose of examining and inspecting the same. The CITY must provide DISTRICT with reasonable notice of such examination and inspection.
8.
INSURANCE: DISTRICT, priorto taking possession of the leased premises, shall provide and maintain for the duration of this Agreement, at its own cost and expense, the following insurance with insurance companies licensed in the State of Oregon, which insurance shall be 3IPage
Lease Agreement-1212 NE Fogarty Street
evidenced by certificates and/or policies as determined by CITY. As proof of insurance coverage DISTRICT shall furnish certificates of insurance to CITY. The certificates shall name the CITY as an additional insured. DISTRICT will notify CITY of cancellation or material change in coverage within 30 days. All such notices shall name CITY. The following insurances are required: General Liability Insurance: with a minimum limit of liability per occurrence of $5,000,000 for bodily injury, and $1,000,000 for property damage, with a total aggregate coverage of $5,000,000. This insurance shall include the following coverage: a. b. c.
Independent Contractor and Subcontractors Broad Form Contractual Additional coverage and limits may be required based upon the particular services contracted. If such additional coverage and limits are required for a specific contract, said requirements will be described in the “Special conditions” of the contract specifications.
9.
NO RECOURSE AND DEDUCTIBLES: The insurance companies issuing the policy or policies shall have no recourse against CITY (including its agents and agencies as aforesaid) for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above described insurance policies shall be assumed by, and be for the account of, and at the sole risk of DISTRICT.
10.
HOLD HARMLESS AND INDEMNIFICATION: DISTRICT agrees to protect, defend, indemnify and hold CITY and its officers, employees and agents free and harmless from and against any and all losses, penalties, damages, settlements, costs, charges, professional fees or other expenses or liabilities of every kind and character arising out of or relating to any and all claims, liens, demands, obligations, actions, proceedings or causes of action of every kind and character in connection with or arising directly or indirectly out of this Lease Agreement, and/or the performance hereof. Without limiting the generality of the foregoing, any and all such claims, etc., relating to personal injury, death, damage to property, defects in materials or workmanship, actual or alleged infringement of any patent, trademark, copyright, (or application of any thereof) or any other tangible or intangible personal or property right, or any actual or alleged violation of any applicable statute, ordinance, administrative order, rule or regulation, or decree of any court, shall be included in the indemnity hereunder. DISTRICT further agrees to investigate, handle, respond to, provide defense for and defend any such claims, etc., at its sole expense and agrees to bear all other costs and expenses related thereto, even if it (claims, etc.) is groundless, false or fraudulent.
11.
LIENS: The DISTRICT will not permit any lien of any kind, type or description to be placed or imposed upon the improvements, without the written consent of CITY, in which the Premises are situated, or any part thereof, or the land on which they stand.
12.
LITIGATION EXPENSE: In the event it is necessary an action at law or a suit in equity be brought to establish, obtain or enforce any right by either of the parties under this Lease Agreement, then the prevailing party in such action or suit or any appeal of a judgment therein shall be entitled to a reasonable attorney’s fee allowance as well as the costs and disbursements of the action or suit, including costs on any appeal.
4IPage Lease Agreement-1212 NE Fogarty Street
13.
DEFAULT: Neither party shall be in default under the Lease until written notice of the unperformed obligation has been given and that obligation remains unperformed after notice for fifteen (15) days in the case of a payment or for thirty (30) days in the case of other obligations. If the obligation cannot be performed within the thirty day period, there shall be no default if the responsible party commences a good faith effort to perform the obligation within such period and continues diligently to complete the performance. In case of a default the non-defaulting party may terminate this Lease with thirty (30) days prior written notice to the defaulting party, and it shall be entitled to recover damages or any other remedy provided by applicable law, or it may elect to perform the defaulting party’s obligation and recover from the defaulting party the costs plus interest at the legal rate for judgment.
14.
CASUALTY DAMAGE EARLY TERMINATION: If the DISTRICT elects to abandon or terminate this Lease, or if the Premises or improvements thereon are damaged or destroyed by fire or other casualty to such a degree that the Premises are unsuitable for the purpose leased as a result of the fire or other casualty the DISTRICT may elect to terminate this Lease Agreement and return to CITY the site in a condition as “clean and bare” ground. All costs of demolition and/or restoring the premises to “clean and bare” ground condition shall be solely the responsibility of DISTRICT.
15.
TERMINATION: In the event of default of obligations under this agreement, the non-defaulting party may terminate the Lease by giving to the defaulting party written notice of intent to terminate at least thirty (30) days prior to the effective date of termination. Said notice shall be delivered as specified in Section 22. The CITY agrees to provide to DISTRICT reasonable notice and time to cure default(s) before a termination notice is given. Should DISTRICT abandon the premises or otherwise terminate this Lease Agreement on or after October 1, 2020 and before September 30, 2116, then DISTRICT shall return the subject premises to CITY as “clean and bare” ground. All costs of demolition and/or restoring the premises to “clean and bare” ground shall be solely the responsibility of DISTRICT.
16.
MAINTENANCE AND REPAIRS: The DISTRICT shall be responsible for all routine maintenance, repairs and resultant costs due to its usual and customary use of the buildings and premises including but not limited to heating and air conditioning, flooring, glass (windows), and parking areas, in a manner consistent with City Building Code requirements.
-
In addition to routine maintenance, the DISTRICT shall be responsible for repairs occasioned by any damage caused by DISTRICT, its officers, agents, employees or permitted occupants and renovations necessary to keep the building(s) and premises in a condition which is acceptable to the CITY, and which otherwise meets all applicable fire, life, safety, and health codes. 17.
ALTERATIONS: It is agreed by the parties hereto, that the DISTRICT may wish to make certain alterations to the demised premises to facilitate and accommodate DISTRICT’s purposes and Plan Design specifications. DISTRICT shall not make any additions, alterations of a structural nature, or improvements in or to the demised premises prior to October 1, 2020 without prior written consent of the City Manager; such consent will not be unreasonably withheld. All additions, alterations and improvements made to the demised premises shall be at the sole expense of DISTRICT. DISTRICT shall have the right to remove its trade fixtures.
18.
UTILITIES: DISTRICT agrees to pay for any and all service or use charges in regard to sewer 5IPage
Lease Agreement-1212 NE Fogarty Street
and water assessments, together with all other utilities. 19.
QUIET ENJOYMENT: The DISTRICT, on performing the covenants and observing the conditions of this Lease, at all times during the term, shall have the peaceable enjoyment of the premises without hindrance or disturbance by the CITY, or any person claiming through or under it or any person having paramount title.
20.
CONDITIONS: This Lease is subject to the following conditions: 1) that DISTRICT is satisfied with a Title Report obtained by DISTRICT at DISTRICT’s expense; and 2) that if the DISTRICT fails to perform any of the covenants herein, then at the option of the CITY, this Lease Agreement shall terminate and CITY, without notice or demand, may re-enter the premises and remove all persons and effects therefrom without prejudice of any other remedies which might otherwise be used by the CITY for any breach of the DISTRICT’s covenants, subject to the Notice, Grace, and Cure provisions in Sections 13 and 15.
21
HOLDING OVER: Any holding over by the LESSEE after the expiration of the term of this Lease, or the term of any extension thereof, shall be a tenancy from month to month and not otherwise.
22.
NOTICES: Notice required to be given hereunder or any notice required to be given by law shall be in writing, and may be given by personal delivery or by registered mail, addressed to: CITY: City Manager City of Newport 169 SW Coast Hwy Newport, Oregon 97365
DISTRICT Superintendent Lincoln County School District P.O. Box 1110 Newport, Oregon 97365
or to either of them in any other manner prescribed by law. 23.
MERGER: The voluntary or other surrender of this Lease or a mutual cancellation hereof, shall not work a merger, and shall, at the option of CITY, terminate all or any existing subleases or sub-tenancies, or shall operate as an assignment to it of such subleases or sub-tenancies.
24.
TITLE: The CITY covenants that it has good title to the property and premises subject to this Lease Agreement.
25.
INTERPRETATION: All the covenants, agreements, conditions and terms contained in this Lease shall be binding upon, apply and inure to the benefit of the heirs, executors, administrators and assigns respectively of the CITY and the DISTRICT, and all of said covenants shall be construed as covenants running with the land.
26.
WAIVER: Failure of the CITY to insist upon the strict performance of the terms, covenants, agreements and conditions in this Lease contained, or any of them, shall not constitute or be construed as a waiver or relinquishment of the CITY’S right to hereafter enforce any such term, covenant, agreement, or condition, but the same shall continue in full force and effect.
27.
ENTIRE AGREEMENT: This lease agreement shall constitute the entire agreement between 6IPage
Lease Agreement-1212 NE F ogarty Street
the parties. Any prior understanding or representation of any kind preceding the date of this lease agreement shall not be binding upon either party except to the extent incorporated in this agreement. 28.
WARRANTIES: DISTRICT DOES ACKNOWLEDGE AND ACCEPT THAT THE PROPERTY IS CONVEYED IN A “WHERE IS, AS-IS” CONDITION. CITY MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION AS TO THE FITNESS FOR A PARTICULAR PURPOSE OR REGARDING ANY CONDITION OF THE PROPERTY OR PREMISES FOR THE SITE. CITY HAS MADE A GOOD FAITH EFFORT TO PROVIDE ALL RELEVANT DOCUMENTS AND RECORDS IN CITY’S POSSESSION TO THE DISTRICT REGARDING THE LEASED PREMISES.
IN WITNESS WHEREOF, the parties hereto enter into this Lease Agreement as of the day and year first above written. CITY OF NEWPORT:
LINCOLN COUNTY SCHOOL DISTRICT:
Spencer Nebel, City Manager
Tom Rinearson, Superintendent
APPROVED AS TO FORM: Steven E. Rich, Legal Counsel
Date
7IPage Lease Agreement-1212 NE F ogarty Street
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