Bureau of Environmental Services
SW Fifth Ave., Room 1000
Portland, OR 97204
Landlord leases to Tenant and Tenant leases from Landlord on the
terms and conditions stated below the property in Portland, Oregon
(the "Premises"), as more particularly described on
attached Exhibit A and incorporated into this lease by this
reference. Tenant may apply
for a separate postal
Premises with the
Term. The term of this lease will commence June 1, 2002, and
continue through December 31, 2006, unless sooner terminated as
Tenant's right to possession and obligations under the lease will
commence on June 1, 2002, or on such later date as the Premises are
available for possession by Tenant if possession is not given on
the opening day of the term. Landlord will have no liability for
delays in delivery of possession and Tenant will not have the right
to terminate this lease because of delay in delivery of possession
except as hereinafter provided.
Base Rent. Tenant will pay to Landlord as base rent the sum
of $16,773 per month in accordance with the following space and
8,934 SF x $0.70 = $6,254
7,911 SF x $0.42 = $3,323
SF x $0.30 = $1,279
65,748 SF x $0.09 = $5,917
Rent will be payable on the first day of each month commencing
June 1, 2002,
in advance at such place as may be designated by Landlord except
that rent for the first month has been paid upon the execution of
this lease, and Landlord acknowledges receipt of this sum.
Additional Rent. All taxes, insurance costs, utility
charges that Tenant is required to pay by this lease, and any other
sum that Tenant is required to pay to Landlord, will be additional
rent. All additional rent will be payable to Landlord with the
base rent on the first day of each month. Landlord shall have the
right to reasonably estimate the additional rent payable for
insurance under Section 6 and, if applicable,
taxes under Section 7 at the
beginning of each lease year. Upon Landlord's notice to Tenant of
such estimated amount of additional rent, Tenant shall pay an
amount ("Estimated Additional Rent") equal to 1/12 of the
estimate of Tenant's Proportionate Share of insurance and taxes.
If the aggregate amount of Estimated Additional Rent paid by Tenant
during any lease year is less than Tenant's actual liability for
insurance and taxes, Tenant shall pay such deficiency within
30 days of Landlord's written demand therefore. If the
aggregate amount of the Estimated Additional Rent paid by Tenant
during any lease year exceeds Tenant's actual liability, the excess
shall be credited against the Estimated Additional Rent next due
from Tenant during the next lease year, except that if such excess
is paid by Tenant during the final lease year, then Landlord shall
pay Tenant the excess promptly after determination thereof.
Escalation. The base rent provided in Section 2.1 will
be increased by 3 percent for each lease year after the base
year. The base year is the 12‑month period commencing with
the first full month during which this lease is in effect. Lease
years thereafter will be each corresponding 12-month period during
the term of this lease.
Use of the Premises
Permitted Use. The Premises will be used as business
offices and for equipment repair and storage and for no other
purpose without the consent of Landlord, which consent will not be
on Use. In connection with the use of the Premises, Tenant
Conform to all applicable laws and regulations of any public
authority affecting the Premises and their use, and correct at
Tenant's own expense any failure of compliance created through
Tenant's fault or by reason of Tenant's use, but Tenant will not
be required to make any structural changes to effect such
compliance unless such changes are required because of Tenant's
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
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.
from loading the electrical system or floors beyond the point
considered safe by a competent engineer or architect selected by
Refrain from making any marks on or attaching any
sign (other than the project
more particularly described in Exhibit B attached hereto),
insignia, antenna, aerial, or other device to the exterior or
interior walls, windows, or roof of the Premises without the
written consent of Landlord.
Access Corridor. Landlord hereby grants to Tenant the
non-exclusive right to use the access corridor, delineated on
Exhibit A, for vehicular traffic from Front Street; however,
Landlord reserves the right in its sole discretion to terminate
Tenant's right to use the access corridor provided that Landlord
has designated an alternative means for trucks and vehicles to
access the Premises 24 hours a day and has given 30 days prior
written notice to the Tenant. If
an alternate access route is provided, the monthly base rental
applicable to the yard area will be reduced by $720 (400' x 40' =
1600SF x $0.09/SF = $1440
divided by 2 = $720) and the total
monthly base rental will be $16,053.
Substances. Tenant will not cause or permit any Hazardous
Substance to be spilled, leaked, disposed of, or otherwise released
on or under the Premises. Tenant may use or otherwise handle on
the Premises only those Hazardous Substances typically used or sold
in the prudent and safe operation of the business specified in
Section 3.1. Tenant may store such Hazardous Substances on
the Premises only in quantities necessary to satisfy Tenant's
reasonably anticipated needs. Tenant will comply with all
Environmental Laws and exercise the highest degree of care in the
use, handling, and storage of Hazardous Substances and will 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 will
remove all Hazardous Substances from the Premises. The term
Environmental Law will 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 will mean any hazardous,
toxic, infectious or radioactive substance, waste, and material as
defined or listed by any Environmental Law and will include,
without limitation, petroleum oil and its fractions.
Air Quality Testing. Tenant may complete a baseline air
quality test. Landlord shall be responsible for completion of air
quality improvements identified in the baseline test prior to
Repairs and Maintenance
Landlord's Obligations. The following will be the
responsibility of Landlord:
Repairs and maintenance of the roof and gutters, exterior walls
(including painting), bearing walls, structural members, floor
slabs, and foundation .
maintenance of exterior water, sewage, gas, and electrical
services up to the point of entry to the leased Premises.
the heating and air conditioning system other than ordinary
event alternate access route is designated by Landlord under
Section 3.3, repair of driveways used in common by Landlord
Tenant's Obligations. The following will be the
responsibility of Tenant:
Repair of interior walls, ceilings, doors, windows, and related
hardware, light fixtures, switches, and wiring and plumbing from
the point of entry to the Premises resulting from Tenant's
or the activities of Tenant's contractors,
agents, invitees, or representatives.
repairs necessitated by the negligence of Tenant, its agents,
employees, and invitees, except as provided in Section 6.2
dealing with waiver of subrogation, but including repairs that
would otherwise be the responsibility of Landlord under
maintenance of the heating and air conditioning system and any
repairs necessary because of improper maintenance.
Repair and maintenance of sidewalks, driveways (including the
access corridor delineated on Exhibit A), curbs, parking
areas, and landscaped areas within the Premises.
repairs or alterations required under Tenant's obligation to
comply with laws and regulations as set forth in Section 3.2(a).
All other repairs to the Premises resulting from Tenant's
or the activities of Tenant's contractors,
agents, invitees, or representatives.
Interference with Tenant. In performing any repairs,
replacements, alterations, or other work performed on or around the
Premises, Landlord will not cause unreasonable interference with
use of the Premises by Tenant. Tenant will have no right to an
abatement of rent nor any claim against Landlord for any
inconvenience or disturbance resulting from Landlord's activities
performed in conformance with the requirement of this provision.
for Repairs Assumed. If Tenant fails or refuses to make
repairs that are required by this Section 4, Landlord may make the
repairs and charge the actual costs of repairs to Tenant. Such
expenditures by Landlord will be reimbursed by Tenant on demand
together with interest at the rate of 12 percent per annum
from the date of expenditure by Landlord. Except in an emergency
creating an immediate risk of personal injury or property damage,
neither party may perform repairs that are the obligation of the
other party and charge the other party for the resulting expense
unless at least 10 days before work is commenced, and the
defaulting party is given notice in writing outlining with
reasonable particularity the repairs required, and such party fails
within that time to initiate such repairs in good faith.
the Premises. Landlord
will have the right to inspect the Premises at any reasonable time
or times to determine the necessity of repair. Whether or not such
inspection is made, the duty of Landlord to make repairs will not
mature until a reasonable time after Landlord has received from
Tenant written notice of the repairs that are required.
Alterations Prohibited. Tenant will make no improvements or
alterations on the Premises of any kind without first obtaining
Landlord's written consent. If
Landlord fails to respond to a request for consent within 30 days,
such consent shall be deemed to have been granted. All
alterations will be made in a good and workmanlike manner, and in
compliance with applicable laws and building codes. As used
herein, "alterations" includes the installation of
computer and telecommunications wiring, cables, and conduit.
Alterations Required. The improvements and alterations
specified in Exhibit B will be completed by the Landlord prior to
the commencement date of the lease.
and Removal of Alterations. All improvements and alterations
performed on the Premises by either Landlord or Tenant will be the
property of Landlord when installed unless the applicable
Landlord's consent or work sheet specifically provides otherwise.
Improvements and alterations installed by Tenant shall, at
Landlord's option, be removed by Tenant and the Premises restored
unless the applicable Landlord's consent or work sheet specifically
Landlord may condition its consent to installation of a work of
visual art in the Premises, as defined in the Visual Artists Rights
Act of 1990 (VARA) at 17 USC § 101, on Tenant's delivery to
Landlord of a written waiver of moral rights under VARA executed by
the artist and to be executed by Landlord acknowledging that the
work may be subject to destruction upon removal.
Required. Landlord will keep the Premises insured at
Landlord's expense against fire and other risks covered by a
standard fire insurance policy with an endorsement for extended
coverage. Tenant will pay a proportionate share of the costs of
this insurance. During the first lease year, Landlord estimates
Tenant's proportionate share of the costs of such insurance will be
$3,000 as outlined in the attached Exhibit XX, of which $250 is to
be paid monthly from Tenant to Landlord as additional rent. In
subsequent lease years, Landlord will determine and notify Tenant
of its estimated proportionate share of the insurance. Tenant will
carry similar insurance insuring the personal property of Tenant on
the Premises against such risks.
Waiver of Subrogation. Neither party will be liable to the
other (or to the other's successors or assigns) for any loss or
damage caused by fire or any of the risks enumerated in a standard
fire insurance policy with an extended coverage endorsement, and in
the event of insured loss, neither party's insurance company will
have a subrogated claim against the other. This waiver will be
valid only if the insurance policy in question expressly permits
waiver of subrogation or if the insurance company agrees in writing
that such a waiver will not affect coverage under the policies.
Each party agrees to use best efforts to obtain such an agreement
from its insurer if the policy does not expressly permit a waiver
Property Taxes. Tenant will pay as due all taxes on its
personal property located on the Premises. Landlord will pay as
due all real property taxes and special assessments levied against
the Premises, and Tenant will reimburse Landlord for its
proportionate share of such taxes. Notwithstanding the foregoing,
at such time as Tenant delivers to Landlord formal notification
from Multnomah County that the Premises shall be exempt from real
property taxes, Tenant shall be relieved of the obligation to
reimburse Landlord for a proportionate share of the real property
taxes for the tax year(s) specified by Multnomah County in the
final notification. As used herein, real property taxes include
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.
Landlord will determine Tenant's estimated proportionate share of
all real property taxes and special assessments, such proportional
share to be based on the ratio of the "real market value"
of the Premises as assessed by the Multnomah County Tax Assessor
compared to the "real market value" of all the land and
buildings that are included on the tax statement that includes the
Premises. Tenant's estimated share of the real property taxes and
special assessments during the first lease year is $20,256 as
outlined on the attached Exhibit XX, of which $1,688 is to be paid
monthly from Tenant to Landlord as additional rent.
Assessments. If an assessment for a public improvement is made
against the Premises, Landlord may elect to cause a proportionate
share of such assessment to be paid in installments, taking into
account the lease term and the long-term value of such public
improvement, in which case all of the installments payable with
respect to the lease term will be treated the same as general real
property taxes for purposes of Section 7.1.
of Taxes. Tenant's share of real property taxes and
assessments for the years in which this lease commences or
terminates will be prorated based on the portion of the tax year
that this lease is in effect.
Charges or Fees. If a new charge or fee relating to the
ownership or use of the Premises or the receipt of rental therefrom
or in lieu of property taxes is assessed or imposed, then, to the
extent permitted by law, Tenant will pay such charge or fee.
Tenant, however, will have no obligation to pay any income, profit,
or franchise tax levied on the net income derived by Landlord from
of Utilities Charges. Tenant will pay when due all charges for
services and utilities incurred in connection with the use,
occupancy, operation, and maintenance of the Premises, including
(but not limited to) charges for fuel, water, gas, electricity,
sewage disposal, power, refrigeration, air conditioning, telephone,
and janitorial services. If any utility services are provided by
or through Landlord, charges to Tenant will be comparable with
prevailing rates for comparable services. If the charges are not
separately metered or stated, Landlord will apportion the charges
on an equitable basis, and Tenant will pay its apportioned share on
Damage and Destruction
Partial Damage. If the Premises are partly damaged and
Section 8.2 does not apply, the Premises will be repaired by
Landlord at Landlord's expense. Repairs will be accomplished with
all reasonable dispatch subject to interruptions and delays from
labor disputes and matters beyond the control of Landlord and will
be performed in accordance with the provisions of Section 4.2.
Destruction. If the Premises are destroyed or damaged such
that the cost of repair exceeds 25 percent of the value of the
structure before the damage, either party may elect to terminate
the lease as of the date of the damage or destruction by notice
given to the other in writing not more than 45 days following the
date of damage. In such event all rights and obligations of the
parties will cease as of the date of termination, and Tenant will
be entitled to the reimbursement of any prepaid amounts paid by
Tenant and attributable to the anticipated term. If neither party
elects to terminate, Landlord will proceed to restore the Premises
to substantially the same form as prior to the damage or
destruction. Work will be commenced as soon as reasonably possible
and thereafter will proceed without interruption except for work
stoppages on account of labor disputes and matters beyond
Landlord's reasonable control.
Abatement. Rent will be abated during the repair of any damage
to the extent the Premises are untenantable, except that there will
be no rent abatement where the damage occurred as the result of the
fault of Tenant.
Late in Term. If damage or destruction to which Section 8.1
would apply occurs within one year before the end of the
then-current lease term, Tenant may elect to terminate the lease by
written notice to Landlord given within 30 days after the date of
the damage. Such termination will have the same effect as
termination by Landlord under Section 8.2.
Partial Taking. If a portion of the Premises is condemned
and Section 9.2 does not apply, the lease will continue on the
Landlord will be entitled to all of the proceeds of condemnation,
and Tenant will have no claim against Landlord as a result of the
will proceed as soon as reasonably possible to make such repairs
and alterations to the Premises as are necessary to restore the
remaining Premises to a condition as comparable as reasonably
practicable to that existing at the time of the condemnation.
After the date on which title vests in the condemning authority or
an earlier date on which alterations or repairs are commenced by
Landlord to restore the balance of the Premises in anticipation of
taking, the rent will be reduced in proportion to the reduction in
value of the Premises as an economic unit on account of the
partial taking. If the parties are unable to agree on the amount
of the reduction of rent, the amount will be determined by
arbitration in the manner provided in Section 18.
portion of Landlord's property not included in the Premises is
taken, and severance damages are awarded on account of the
Premises, or an award is made for detriment to the Premises as a
result of activity by a public body not involving a physical
taking of any portion of the Premises, this will be regarded as a
partial condemnation to which Sections 9.1(a) and 9.1(c)
apply, and the rent will be reduced to the extent of reduction in
rental value of the Premises as though a portion had been
Total Taking. If a condemning authority takes all of the
Premises or a portion sufficient to render the remaining Premises
reasonably unsuitable for the use that Tenant was then making of
the Premises, the lease will terminate as of the date the title
vests in the condemning authorities. Such termination will have
the same effect as a termination by Landlord under Section 8.2.
Landlord will be entitled to all of the proceeds of condemnation,
and Tenant will have no claim against Landlord as a result of the
Lieu of Condemnation. Sale of all or part of the Premises to a
purchaser with the power of eminent domain in the face of a threat
or probability of the exercise of the power will be treated for the
purposes of this Section 9 as a taking by condemnation.
Sale of the Premises.
For Sale. Tenant acknowledges that the Landlord is trying to
sell a 7.0 +/- acre parcel (idnetified on Exhibit X) containing the
Premises. In order to facilitate such sale, Tenant agrees to
relocate if necessary, to a substantially equivalent space within
the proposed property boundaries of this parcel. For the purposes
of this paragraph, “substantially equivalent” shall mean a
space with substantially equivalent usable square footage,
utilities, access to Terminal 1 project site, space for office,
shop, and warehouse, and parking. Landlord, or any successor in
title, shall give Tenant a minimum of twelve months prior written
notice of its intent to relocate Tenant in other facilities on the
7.0+/- parcel. All terms and conditions of this Lease shall apply
to the occupancy of the new Premises. Landlord or any successor in
title to Landlord shall compensate Tenant for its reasonable
the Premises by Prospective
Purchasers. Landlord or its agent will have the right to enter
upon the Premises at any time after giving reasonable notice to
Tenant to show the Premises to any prospective purchaser.
Reasonable notice for the purpose of this Section 10.2 shall mean
oral telephonic notice two hours prior to the entry of the
Premises. Such notice shall be deemed to be given if a message, on
behalf of the Landlord, is left with any person answering Tenant's
Sale Signs. Landlord will have the right at any time during
this lease to place and maintain upon the Premises notices for the
selling of the Premises.
Liability and Indemnity
To the extent not
prohibited under Oregon law,
Tenant will indemnify and defend Landlord from any claim, loss, or
liability arising out of or related to any activity of Tenant or
any of its contractors on the Premises or any condition of the
Premises for which Tenant is responsible or which is under the
control of Tenant or one of Tenant's contractors. Landlord will
have no liability to Tenant for any injury, loss, or damage caused
by third parties.
with respect to activities for which Landlord is responsible,
Tenant will pay as due all claims for work done on and for
services rendered or material furnished to the Premises, and will
keep the Premises free from any liens. If Tenant fails to pay any
such claims or to discharge any lien, Landlord may do so and
collect the cost as additional rent. Any amount so added will
bear interest at the rate of 12 percent per annum from the
date expended by Landlord and will be payable on demand. Such
action by Landlord will not constitute a waiver of any right or
remedy that Landlord may have on account of Tenant's default.
Tenant may withhold payment of any claim in connection with a
good‑faith dispute over the obligation to pay, as long as
Landlord's property interests are not jeopardized. If a lien is
filed as a result of nonpayment, Tenant will, within 30 days after
knowledge of the filing, secure the discharge of the lien or
deposit with Landlord cash or sufficient corporate surety bond or
other surety satisfactory to Landlord in an amount sufficient to
discharge the lien plus any costs, attorney fees, and other
charges that could accrue as a result of a foreclosure or sale
under the lien.
Before going into possession of the Premises, Tenant and Tenant’'s
contractors shall procure and maintain at their cost the following
insurance issued by a responsible company: (a) comprehensive
general liability insurance with limits of not less than
$1,000,000 for injury to one person, $3,000,000 for injury to two
or more persons in one occurrence, and $500,000 for damage to
property; or (b) commercial general liability insurance
(occurrence version) with coverage for bodily injury and property
damage liability, personal and advertising injury liability, and
medical payment with a general aggregate limit of not less than
$5,000,000 and a per occurrence limit of not less than $3,000,000.
Such insurance will cover all risks arising directly or
indirectly out of Tenant's or
Tenant's contractors' activities
on or any condition of the Premises.
Such insurance will protect Tenant against the claims of Landlord
on account of the obligations assumed by Tenant under
and will name Landlord as an additional insured. Certificates
evidencing such insurance and bearing endorsements requiring 10
days' written notice to Landlord prior to any material change or
cancellation will be furnished to Landlord prior to Tenant's or
Tenant's contractors' occupancy of
shall have the right to self-insure the risks that would otherwise
be covered by the liability insurance policy required to be
maintained by Tenant by the terms of Section 11.3(a) above.
Landlord acknowledges that Tenant has
elected to exercise its right to self-insure. Tenant hereby
assumes the risks of and shall pay from its assets the costs,
expenses, damages, claims, losses, and liabilities relating to
injury or death to persons or damage to property, if and to the
same extent that a third party insurance company would have paid
those amounts if the insurance company were insuring those risks
under the policy described in Section 11.3(a) above.
Notwithstanding anything contained in this Lease to the contrary,
the terms of this Section 11.3(b) permitting Tenant to
self-insure shall only be applicable to the City of Portland and
shall not apply to any subtenant or assignee. Upon the request of
Landlord, Tenant shall furnish Landlord with such information as
Landlord may reasonably request to substantiate that Tenant
maintains a regular program of self-insurance. Tenant shall
promptly notify Landlord in writing if Tenant is required to or
elects to terminate its program of self‑insurance for any
reason whatsoever. That notice shall be accompanied by a
certificate of insurance from a third party insurance company
which evidences the existence of the insurance coverage required
to be maintained pursuant to the terms of Section 11.3(a)
Warranty. Landlord warrants 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 claiming by or through
This lease will be subject and subordinate at all times to any and
all mortgages or deeds of trust that now or may hereafter encumber
the Premises and to any renewal, modification, consolidation,
replacement, and extension of any such mortgage or deed of trust.
While no instrument or act by Tenant shall be necessary to
effectuate subordination, either to existing or future mortgages or
deeds of trust, Tenant will, nevertheless, execute and deliver such
further instruments subordinating the interest of Tenant under this
lease to any such mortgage or deed of trust as may be desired by
Landlord or by the mortgagee or the trustee. Tenant hereby
appoints Landlord to execute and deliver any such instrument for
Certificate. Tenant will, within 20 days after notice
from Landlord, execute and deliver to Landlord a certificate
stating whether or not this lease has been modified and is in full
force and effect and specifying any modifications or alleged
breaches by Landlord. The certificate will also state the amount
of monthly base rent, the dates to which rent has been paid in
advance, and the amount of any security deposit or prepaid rent.
Failure to deliver the certificate within the specified time will
be conclusive upon Tenant that the lease is in full force and
effect and has not been modified except as represented in the
notice requesting the certificate.
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, except as otherwise noted in this Section. This provision
will apply to all transfers by operation of law. No consent in one
instance will prevent the provision from applying to a subsequent
contractor, Impregilo/S.A. Healy, is hereby approved by Landlord to
use the Premises as provided
in Section 3 herein. Prior to taking possession, such contractor
shall provide evidence of the insurance required by Section 11.3(a)
The following will be
events of default:
in Rent. Failure of Tenant to pay any rent or other charge
within 10 days after it is due.
in Other Covenants. Failure of Tenant to comply with any
material term or condition or fulfill any obligation of the lease
(other than the payment of rent or other charges) within 30 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 30‑day
period, this provision will be complied with if Tenant begins
correction of the default within the 30‑day period and
thereafter proceeds with reasonable diligence and in good faith to
effect the remedy as soon as practicable.
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 will
constitute a default.
Failure of Tenant for 20 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.
Remedies 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 will 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.
Following reentry or abandonment, Landlord may relet the Premises
and in that connection may make any suitable alterations or
refurbish the Premises, or both, or change the character or use of
the Premises, but Landlord will not be required to relet for any
use or purpose other than that specified in the lease or which
Landlord may reasonably consider injurious to the Premises, or to
any tenant that Landlord may reasonably consider objectionable.
Landlord may relet all or part of the Premises, alone or in
conjunction with other properties, for a term longer or shorter
than the term of this lease, upon any reasonable terms and
conditions, including the granting of some rent-free occupancy or
other rent concession.
In the event of termination or retaking of possession following
default, Landlord will be entitled to recover immediately, without
waiting until the due date of any future rent or until the date
fixed for expiration of the lease term, the following amounts as
of rental from the date of default until a new tenant is, or with
the exercise of reasonable efforts could have been, secured and
reasonable costs of reentry and reletting including without
limitation the cost of any cleanup, refurbishing, removal of
Tenant's property and fixtures, costs incurred under Section 15.5,
or any other expense occasioned by Tenant's default including but
not limited to, any repair costs, attorney fees, court costs,
broker commissions, and advertising costs.
excess of the present value of the rent and all of Tenant's other
obligations under this lease over the reasonable expected return
from the Premises for the period commencing on the earlier of the
date of trial or the date the Premises are relet, and continuing
through the end of the term. The present value of future amounts
will be computed using a discount rate equal to the prime loan
rate of major Oregon banks in effect on the date of trial.
to Sue More than Once. Landlord may sue periodically to
recover damages during the period corresponding to the remainder of
the lease term, and no action for damages will bar a later action
for damages subsequently accruing.
Landlord's Right to Cure Defaults. If Tenant fails to
perform any obligation under this lease, Landlord will have the
option to do so after 30 days' written notice to Tenant. All of
Landlord's reasonable expenditures to correct the default will be
reimbursed by Tenant on demand with interest at the rate of
12 percent per annum from the date of expenditure by Landlord.
Such action by Landlord will not waive any other remedies
available to Landlord because of the default.
Cumulative. The foregoing remedies will be in addition to and
will not exclude any other remedy available to Landlord under
Surrender at Expiration
the Premises. Upon
expiration of the lease term or earlier termination on account of
default, Tenant will deliver all keys to Landlord and surrender the
clean and in as good or better condition as at the beginning of the
Alterations constructed by Tenant with permission from Landlord
will not be removed or restored to the original condition unless
the terms of permission for the alteration so require. Tenant's
obligations under this Section
will be subordinate to the provisions of Section 8 relating to
fixtures placed upon the Premises during the term, other than
Tenant's trade fixtures, shall, at Landlord's option, become the
property of Landlord. If Landlord so elects, Tenant will remove
any or all fixtures that would otherwise remain the property of
Landlord, and will repair any physical damage resulting from the
removal. If Tenant fails to remove such fixtures, Landlord may do
so and charge the cost to Tenant with interest at the legal rate
from the date of expenditure.
expiration or other termination of the lease term, Tenant will
remove all furnishings, furniture, and trade fixtures that remain
its property. If Tenant fails to do so, this will be an
abandonment of the property, and Landlord may retain the property
and all rights of Tenant with respect to it will cease or, by
notice in writing given to Tenant within 20 days after
removal was required, Landlord may elect to hold Tenant to its
obligation of removal. If Landlord elects to require Tenant to
remove, Landlord may effect a removal and place the property in
public storage for Tenant's account. Tenant will be liable to
Landlord for the cost of removal, transportation to storage, and
storage, with interest at the legal rate on all such expenses from
the date of expenditure by Landlord.
If Tenant does not vacate the Premises at the time required,
Landlord will have the option to treat Tenant as a tenant from
month to month, subject to all of the provisions of this lease
except the provisions for term and renewal, and at a rental rate
equal to 150 percent of the rent last paid by Tenant during
the original term, or to eject Tenant from the Premises and
recover damages caused by wrongful holdover. Failure of Tenant to
remove fixtures, furniture, furnishings, or trade fixtures that
Tenant is required to remove under this lease will constitute a
failure to vacate to which this Section
will apply if the property not removed will substantially
interfere with occupancy of the Premises by another tenant or with
occupancy by Landlord for any purpose including preparation for a
month-to-month tenancy results from a holdover by Tenant under
this Section 16.3, the tenancy will be terminable at the end
of any monthly rental period on written notice from Landlord given
not less than 10 days prior to the termination date, which will be
specified in the notice. Tenant waives any notice that would
otherwise be provided by law with respect to a month-to-month
Waiver by either party 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.
Fees. If suit or action is instituted in connection with any
controversy arising out of this lease, the prevailing party will 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.
Any notice required or permitted under this lease will 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.
Subject to the above-stated limitations on transfer of Tenant's
interest, this lease will be binding on and inure to the benefit of
the parties and their respective successors and assigns.
Memorandum of this Lease
may be recorded
by Tenant in a form approved by Landlord.
Tenant shall pay the recording
fee. Upon termination or execution of this Lease, Tenant shall
execute upon request an instrument in recordable form evidencing
or expiration of this
Entry for Inspection. Landlord will have the right to enter
upon the Premises at any time after reasonable notice to determine
Tenant's compliance with this lease, to make necessary repairs to
the building or to the Premises.
Reasonable notice for the purpose of this Section 17.6 shall
mean oral notice two hours prior to the entry of the Premises.
Such notice shall be deemed to be given if a message, on behalf of
the Landlord, is left with any person answering Tenant's telephone.
Interest on Rent and Other Charges. Any rent or other
payment required of Tenant by this lease will, if not paid within
15 days after it is due, bear interest at the rate of 12 percent
per annum (but not in any event at a rate greater than the maximum
rate of interest permitted by law) from the due date until paid.
In addition, if Tenant fails to make any rent or other payment
required by this lease to be paid to Landlord within five days
after it is due, Landlord may elect to impose a late charge of five
cents per dollar of the overdue payment to reimburse Landlord for
the costs of collecting the overdue payment. Tenant will pay the
late charge upon demand by Landlord. Landlord may levy and collect
a late charge in addition to all other remedies available for
Tenant's default, and collection of a late charge will not waive
the breach caused by the late payment.
of Rent. In the event of commencement or termination of this
lease at a time other than the beginning or end of one of the
specified rental periods, then the rent will be prorated as of the
date of commencement or termination and in the event of termination
for reasons other than default, all prepaid rent will be refunded
to Tenant or paid on its account.
Essence. Time is of the essence of the performance of each of
Tenant's obligations under this lease.
Disputes to Be Mediated. If any dispute arises between the
parties concerning this lease
or the parties'
obligations or activities hereunder, the dispute shall be submitted
to mediation before a mediator agreed to and compensated equally by
both parties prior to commencement of arbitration or litigation.
If the parties fail to agree on a mediator, a mediator shall be
appointed by the presiding judge of the Multnomah County Circuit
Procedure for Arbitration. If resolution of any dispute
between the parties cannot be resolved by mediation, the parties
shall each choose an arbitrator,
and the two arbitrators will choose a third. If the choice of the
second or third arbitrator is not made within 10 days of choosing
of the prior arbitrator, then either party may apply to the
presiding judge of the Multnomah
County Circuit Court to appoint an arbitrator. The arbitrator will
proceed according to the Oregon statutes governing arbitration, and
the award of the arbitrators will have the effect therein provided.
The arbitration will take place in the county where the leased
are located. Costs of the arbitration will be shared equally by
the parties, but each party will pay its own attorney fees incurred
in connection with the arbitration.
Landlord: Tenant: SULZER
PUMPS (US) INC. CITY OF PORTLAND
of the Premises)
hard copy if diagram does not display)
to the commencement of the lease, Landlord will:
Remove control panel wall and cabinets.
Paint lower office area.
Clean or replace, as needed, carpet in lower office area.