HomeMy Public PortalAbout1998.01.01 Sta_Bax, Inc Submerged Lands Lease B-5007IDAHO DEPARTMENT OF LANDS)
SUBMERGED LANDS LEASE - COMMERCIAL
Lease No. B-5007
This lease agreement is made and entered into by and between the State of Idaho, acting by and through the State Board of Land
Commissioners (LESSOR) and STA-BAX, INC. (Lessee) P.O. BOX 1063, McCall, Idaho 83638, collectively referred to herein as the
"Parties." In consideration of the mutual covenants and conditions contained herein, the Parties agree as follows:
This lease shall commence January 1,1998 and terminate December 31, 2007.
The LESSOR does hereby lease and demise unto the LESSEE, at the rate and for the use specified herein, the lands described as follows:
A tract of land on the bed of Payette Lake adjacent to Block 4, McCall's First Addition to the Village of McCall, as shown on Encroachment
Permit No. L-65-S-372E, in Section 9, Township 18 North, Range 3 East, B.M., containing 2.72 acres, more or less.
[Valley County, LM20-10]
In consideration of the foregoing, the covenants, restrictions and conditions in the attached, herein incorporated by reference, are hereby
agreed to by LESSEE and LESSOR.
ANNUAL RENT. The annual rent hereunder shall be a minimum of TWO HUNDRED FIFTY DOLLARS ($250.00) or 3.75% of annual gross
receipts, whichever is greater, for the commercial marina plus ONE THOUSAND DOLLARS ($1,000.00) or 2% times gross receipts,
whichever is greater, for the retail sales building. LESSEE agrees to pay said minimum rent to LESSOR, in advance, on or before the 1st
day of January of each year hereunder. Gross Receipts Report and Rent are due on or before February 1 of each lease year hereunder. Late
payments will be assessed a fee as determined by the State Board of Land Commissioners.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed the day and year first above written.
IDAHO STATE BOARD OF LAND COMMISSIONERS
Secretary of State
Director, Department of Lands
President of the State Board of Land Commissioners
Govemor of the State of Idaho
STATE OF IDAHO, COUNTY OF ADA
On this day of in the year , before me, a Notary Public in and for said State,
personally appeared Philip E. Batt, known to me to be the President of the Idaho State Board of Land Commissioners and the Governor of
the State of Idaho; and Pete T. Cenarrusa, known to me to be the Secretary of the State of Idaho and Stanley F. Hamilton, known to me to
be the Director, Department of Lands, that executed the within instrument, and acknowledged to me that the State Board of Land
Commissioners of the State of Idaho and the State of Idaho executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the day and year last above written.
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5. Lessee's Compliance with Applicable Laws and Rules.
A. Full Compliance. Lessee's use of the Leased Site shall fully comply with all statutes, ordinances, rules, regulations and laws of
applicable federal, state and local govemmentat authorities. Lessee shall comply with all applicable rules and regulations and
standards promulgated by the State Land Board or the Idaho Department of Lands, including but not limited to the Rules
Governing Leases on State -Owned Submerged Lands and Formerly Submerged Lands, IDAPA 20.03.17, which rules are
expressly incorporated by reference into this lease.
B. No Waste or Nuisance. Lessee shall not use the Leased Site in any manner that would constitute waste, nor shall the Lessee
allow the same to be committed thereon. The Lessee shall not do anything which will create a nuisance or a danger to
persons or property.
6. Environmental, Safety and Sanitary Requirements.
A. Sanitary Requirements. Lessee shall at all times keep the Leased Site in a clean and sanitary condition, free of trash, noxious
weeds, garbage and litter, so that the Leased Site is maintained in as nearly natural state as possible. Lessee shall not
dispose of sewage except in conformity with applicable federal, state, and local law, rules and regulations pertinent to Lessee's
use. The Lessee shall store and dispose of all trash and garbage within conformity with all legal requirements. Lessee is
responsible for all costs associated with sewage, garbage and litter disposal.
B. •Fire and Safety Regulations. Lessee shall comply with all applicable state laws and rules of the Department of Lands, for fire
protection and prevention. Lessee agrees to keep the Leased Site free from fire hazards. Lessee is prohibited from burning of
garbage or household trash. The burning of wood or other debris requires the prior written permission of Lessor and must
comply with applicable federal, state, or local law, regulation, rule or ordinance.
C. No Hazardous Materials. Lessee shall neither commit nor permit the use, placement, transport or disposal of any hazardous
waste such as oil, gasoline or any other substance that is or is suspected to be hazardous substance or material. Lessee shall
be responsible, and shall pay all costs for the removal or taking other appropriate remedial action regarding any hazardous
waste, substances, or materials which Lessee may have caused to be introduced on the Leased Site. Any such remediation or
removal or storage must be conducted in accordance with applicable federal, state or local law, regulation, rule or ordinance.
7. No Warranty of Suitability.
A. No Warranty. Lessee acknowledges that the Lessor, nor any agent or designee of the Lessor has made any representation or
warranty with respect to the Leased Site or concerning the suitability of the Leased Site for the uses intended by the Lessee.
Lessee acknowledges that it has accepted the Leased Site in an "AS IS CONDITION", accepting liability for any and all known
or unknown faults therein.
B. Quiet Enjoyment. Lessor agrees that the Lessee, upon payment of the rent and performing the terms of this Lease, may
quietly have, hold and enjoy the Leased. Site during the term hereof.
8. Payment of Taxes and Assessments.
The Lessee agrees to pay, when due, before delinquency, any real or personal property taxes, assessment or fees that may be
assessed or levied by a govemmentat authority asserting such authority over the Leased Site or its improvements. Lessee shall
make such payment directly to the taxing authority and hold Lessor harmless from any claim or assessment.
9 Construction and Improvements.
A. Water Development. Lessee shall not drill or use a new water well, nor develop any use of any water source without first
obtaining the prior written consent of the Lessor and the applicable governmental authorities responsible for adjudicating and
developing water rights.
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B. Construction of Improvements. Lessee may construct improvements upon the Leased Site under limited circumstances in
accordance with the following conditions. Lessee must first obtain an Encroachment Permit under the Idaho Lake Protection
Act, I.C. §§ 58-1301, et seq. The construction of the improvements must also comply with all applicable zoning and local
building codes, to the extent they apply: and the rules and regulations of the Idaho Department of Lands. Lessee may not
place a lien or encumber the Leased Site.
C. Treatment of Approved Improvements Upon Lease Expiration. Upon expiration of this Lease or any renewal period, the Lessor
shall have the right to purchase the approved improvements from Lessee at the fair market value of the improvements as of
the date of the lease expiration, or Lessor may require Lessee to remove all approved improvements placed or caused to be
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ATTACHMENT A
Commercial
1. Rent.
Lessee shall pay the Lessor, as rent for the Leased Site, the following amounts, determined and payable in the manner and at the
time set forth herein.
A. Annual Rent. Lessee shall pay to Lessor as annual rent, without abatement, offset or deduction of any kind, unless allowed by
this Lease, the sum of TWO HUNDRED FIFTY DOLLARS ($250.00) or 3.75% of annual gross receipts, whichever is greater,
for the commercial marina plus ONE THOUSAND DOLLARS ($1,000.00) or 2% times gross receipts, whichever is greater,
for the retail sales building. Gross receipts for the retail sales building will not include the sale of boat fuel. Each of said annual
rent payments will be made payable in advance beginning on the first day of January, and on every anniversary thereafter. All
rent shall be paid in lawful money of the United States of America forwarded to the Lessor or as otherwise directed by the
Lessor in writing.
B. Gross Receipts and Rent Report. Gross receipts rent is due when the percentage of annual gross receipts exceeds the
minimum rent amount. Lessee shall calculate gross receipts rent as follows: annual gross receipts multiplied by percentage
less the minimum rent, equals gross receipts rent (gross receipts x % - minimum = gross receipts rent). If the percentage of
gross receipts totals less than the minimum rent paid in advance for the lease year, then only the minimum rent is due — no
gross receipts rent payment shall be due.
Whether or not gross receipts rent is due, Lessee shall provide to Lessor, a verified report of gross receipts for the previous
calendar year. Said report shall be due on or before February 1 of each year. Gross receipts rent shall also be due on or
before February 1 of each year. It is incumbent upon Lessee to furnish said report and payment to Lessor without further
notification.
C. Annual rent subject to modification. Lessor reserves the right to increase or decrease the annual rent to be paid by the Lessee
effective on January 1 of any calendar year by first providing Lessee with one hundred and eighty (180) calendar days prior
written notification of the change in the annual lease amount.
D. Late Payment Fee. Any late payment of annual rent shall be cause for the Lessor to declare a default herein. If any rent
payment is not made to Lessor on or before January 1 as provided herein, the Lessee shall pay to the Lessor, as a late
payment fee an amount equal to $25.00 or one percent (1 %) of the amount due, whichever is greater, plus one percent (1 %)
per month of said amount due including interest thereafter until paid in full.
E. Bond. Lessee shall submit a performance bond in favor of the state of Idaho and in a format acceptable to the director. The
amount of the bond shall be FOUR THOUSAND FIVE HUNDRED DOLLARS ($4,500.00).
2. Right to Renew.
Lessor grants to Lessee the option to renew this Lease for one additional term of ten (10) years commencing upon expiration of the
original Lease, provided that written notice of the exercise of the option shall be given by Lessee to Lessor at least ninety (90)
calendar days prior to the expiration of this Lease. This option to renew may be exercised by Lessee only in the event that: (1) all
rents due have been paid in full; (2) Lessee continues to hold a valid Encroachment Permit and is in compliance with all the
provisions of the Encroachment Permit; and (3) Lessee has complied with all provisions of this Lease and fully and faithfully
performed all obligations herein.
3. Use of Premises.
The leased site shall be used for a commercial marina and a retail sales business in accordance with Encroachment Permit No. L-
65-S-372E and any successor permit. This Lease is contingent upon Lessee continually maintaining and complying with the
provisions contained in the Encroachment Permit. Any new or change of use requires Lessor's prior written amendment of the
Encroachment Permit and prior written adjustment of this Lease Agreement.
4. Sublease and Assignment.
A. Sublease. This Lease may not be subleased without first Lessee obtaining the prior written consent of Lessor, or Lessor's
designee.
B. Assignment. This Lease may not be assigned without first Lessee obtaining the prior written consent of the Lessor, or Lessor's
designee.
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placed upon the Leased Site and have the Lessee restore the Leased Site to as nearly natural condition as practicable. The
removal of the approved improvements shall be at the Lessee's sole cost and expense as will be the restoration of the Leased
Site. Lessee shall maintain the Leased Site free of any encumbrance or lien.
D. Non -Approved Improvements. Any improvements to the Leased Site which are not approved by Lessor shall be removed by
the Lessee at the Lessee's sole cost and expense. Upon the expiration of the lease term if unapproved improvements remain
on the Leased Site, then Lessor may remove such unapproved improvements and charge the cost of removal and restoration
to Lessee. Lessee shall also be responsible for all collection costs including legal fees and interest.
10. Relations of the Parties.
Lessee is not an officer, employee or agent of the Lessor. Lessee covenants that it will satisfy and hold Lessor harmless against
any lien, judgment or encumbrance filed or made against the Leased Site at the Lessee's sole and separate cost or expense.
11. Insurance.
Lessee shall purchase and keep in force all insurance required by this Lease, including business interruption insurance to the extent
it is available, to assure payment of the annual rental rate.
A. Commercial General Liability. Lessee shall obtain, at Lessee's expense, and keep in effect during the term of this Lease,
Commercial, General, Liability Insurance covering bodily injury and property damage. This insurance shall include personal
injury coverage, contractual liability coverage for the indemnity provided under this Lease. Coverage shall be combined single
limit per occurrence which shall not be less than ONE MILLION DOLLARS ($1,000,000.00) or the equivalent. Each annual
aggregate limit shall not be less than ONE MILLION DOLLARS ($1,000,000.00), when applicable.
B. Additional Insured. The liability insurance coverage, required for performance of the Lease shall include the State of Idaho, the
Board of Land Commissioners, and the Department of Lands, its officers, agents and employees as Additional Insureds, but
only with respect to the Lessee's activities arising during the performance of this Lease. There should be no cancellation,
material change, potential exhaustion of aggregate limits or intent not to renew insurance coverages without thirty (30)
calendar days written notice from the Lessee or its insurer to the Department of Lands. Any failure to comply with the reporting
provisions of this insurance, except for the potential exhaustion of aggregate limits, shall not effect coverages provided to the
State of Idaho, the Board of Land Commissioners and the Department of Lands, its officers and employees.
12. Indemnification.
Lessee shall indemnify, defend and save harmless the Lessor, the State of Idaho, its officers, agents and employees from and
against any liability, claims, damages, losses, expenses or actions, including reasonable attorneys' fees, caused by or arising out of
the performance, act or omission of Lessee, or Lessee's agents, or employees or otherwise arising out of the use or occupation of
the Leased Site; or arising from the Lessee or Lessee's agents, or employees failure to comply with any applicable state, federal, or
local law, statute, rule, regulation or act. This indemnification shall survive the termination or expiration of this Lease.
13. Inspection and Audit Rights.
A. Inspection by Lessor. Lessee shall permit Lessor, or Lessor's authorized agent or designee to inspect and enter the Leased
Site and any improvements at any reasonable time.
B. Audit Rights. The Lessor shall have the right to audit, in such a manner at all reasonable times as it deems appropriate, all
activities of the Lessee arising in the course of its undertakings under this Lease. Lessee must maintain its books, records,
documents, and other evidence of accounting in accordance with generally accepted accounting principles so as to properly
reflect its business.
14. Reservations by Lessor.
The Lessor expressly reserves and excepts the following rights from the Lease:
A. The rights and interests of the public in the Leased Site under the Equal Footing and Public Trust Doctrine.
B. All rights for oil and gas, geothermal rights, mineral rights, easements and rights -of -way, fee title to the Leased Site, and title to
all appurtenances and improvements placed thereon by the Lessor.
C. The right to grant easements over the Leased Site, providing, said easements do not conflict with the approved improvements
installed and maintained or operated by the Lessee upon the Leased Site.
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D. The right to require that changes are made to the sanitation or other facilities for the protection of public health, safety or
preservation of the Leased Site.
E. The right to issue leases for exploration and development of oil, gas, geothermal and mineral resources or any other lease, so
long as such other use does not materially interfere with the authorized use under this Lease.
15. Lessees Default.
Lessee's breach of any of the terms of this Lease or a breach of any of the terms of the applicable Encroachment Permit is a basis
for termination of the Lease. Lessee's violation of any Land Board or Department of Lands rule or regulation currently or hereafter
adopted is a further basis for termination of this Lease. Lessor shall provide Lessee written notice of the breach for violation and, if
applicable, the corrective action required of Lessee. The notice shall specify the reasonable time to make a correction or cure the
violation or breach. If the corrective action or cure is not taken within the specified time or does not occur, then the Lessor, or
Lessor's designee shall cancel the Lease effective on the date specified in the written cancellation notice, provided however, that
the notice shall be provided to lessee no later than thirty (30) calendar days prior to the effective date of such cancellation.
16. Notices.
Any notice or demand given under the terms of this Lease shall be deemed given and delivered on the date when personally
delivered or if mailed, the date same is deposited in the United States Mail, and mailed by registered or certified mail, return receipt
requested, postage prepaid and properly addressed to the appropriate party. Until changed by notice in writing, notice, demands
and communications shall be addressed as follows:
TO: Idaho Department of Lands
954 W. Jefferson St.
P.O. Box 83720
Boise ID 83720-0050
17. Waiver.
TO: Sta-Bax, Inc.
P.O. BOX 1063
McCall ID 83638
The waiver by the Lessor of any breach of any term, covenant or condition of this Lease shall not be deemed to be a waiver of any
past, present or future breach of the same or any other term, covenant or condition of this Lease. The acceptance of rent by the
Lessor hereunder shall not be construed to be a waiver of any term of this Lease. No payment by the Lessee of a lesser amount
than shall be due according to the terms of this Lease shall be deemed or construed to be other than a part payment on account of
the most recent rent due, nor shall any endorsement or statement of any check or letter accompanying any payment be deemed to
create an accord and satisfaction.
18. Attorneys' Fees and Costs.
In the event that either party to this Lease shall interpret or enforce any of the provisions hereof by any action at law or in equity, the
unsuccessful party to such litigation agrees to pay to the prevailing party all costs and expenses, including reasonable attorneys'
fees, accountants' fees and appraisers and fees of other experts, incurred therein by the prevailing party, including all such costs
and expenses incurred with respect to an appeal and such may be included in the judgment entered in such action.
19. Surrender of Leased Site.
Upon the expiration of this Lease term, all right, title, and interest of Lessee to any of the improvements constructed upon or placed
upon the Leased Site that are not removed shall be deemed to revert to the State of Idaho. Lessee upon termination of this Lease
shall quietly surrender the Leased Site to Lessor.
20. Officials, Agents and Employees Not Personally Liable.
In no event shall any official, officer, employee or agent of the State be in any way personally liable or responsible for any covenant
or obligation contained in this Lease, express or implied, nor for any statement, representation or warranty made in connection
herewith.
21. Miscellaneous.
A. Modification. This Lease may be modified in any particular only by the prior written consent of the authorized representatives
of the Lessor and Lessee.
B. Complete Statement of Terms. No other understanding, whether oral or written, whether made prior to or contemporaneously
with this Lease, shall be deemed to enlarge, limit or otherwise effect the operation of this Lease.
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C. Lessee's Non -Discrimination. Lessee shall not discriminate against any person because of race, creed, religion, color, sex,
national origin or disability.
D. Paragraph Headings. The paragraph headings, titles and captions used in this Lease are for convenience only and are not
part of the Lease.
E. Entire Agreement. This Lease contains the entire agreement between the parties as of the date concerning the subject matter
hereof and supersedes all prior agreements. The execution of this lease has not been induced by either party, or any agent of
either party, be representations, promises or undertakings not expressed herein and, further, there are not collateral
agreements, stipulations, covenants, promises, inducements or undertakings whatsoever between the respective parties
conceming this Lease except those which are expressly contained herein.
F. Governing Law and Forum. This Lease shall be construed in accordance with and governed by the laws of the State of Idaho
and the parties consent to the jurisdiction of Idaho State Courts located in Ada County in the event of any dispute with respect
to this Lease.
G. Binding on Heirs and Successors. It is understood and agreed that all terms, covenants and conditions hereof shall be binding
upon the approved sublessees, approved assignees and Lessee's heirs or successors in interest.
H. Severability. In the event any provision of this Lease shall be held invalid or unenforceable according to law, for any reason
whatsoever, then the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
I. The Lessee shall provide, at no cost to the Lessor, a boat slip for the Lessor's use in administering and policing the waters of
Payette Lake.
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