HomeMy Public PortalAbout2000.01.26 Inland Marine Construction Lease for Land Mill ParkLEASE
This Lease is made January 1, 2002 by and between the City of McCall, an
Idaho municipal corporation ("Lessor"), and Inland Marine Construction, Inc., an
Idaho business corporation, of McCall, Idaho ("Lessee"), for and in consideration of
the mutual promises herein contained.
Backj~round
o
o
Lessor is the owner of land dedicated for park purposes, located between
East Lake Street (sometimes called Lakeshore Boulevard) and the high
water mark of Payette Lake.
Lessee is engaged in the business of dock construction and repairs,
wherein he requires lake access from a public city street for loading and
unloading purposes. Lessee holds a permit from the Idaho Department of
Lands for the use of the waters to load and unload materials.
Lessor views the dock business as a contributing factor to the public
recreational enjoyment of the Lake.
An access ramp and work area was constructed by the previous owner
from the edge of the traveled way of East Lake Street down to the waters
edge ("Access Ramp").
Agreement
o
Lessor leases to Lessee, and Lessee leases from Lessor, the Access Ramp
depicted on Exhibit "B" to this lease, which is located within the City of
McCall, Valley County, Idaho, and on a "triple net" basis, that is, with all
expenses of the Property to be borne by Lessee. The exact location of the
leased access is depicted on Exhibit "B", an excerpt from a map drawn by
Kerr Surveying, McCall, Idaho, dated December 1985.
This Lease is for a term commencing at 12:01 AM on January 1, 2002 and
ending at 11:59 PM, December 31, 2002.
The term of this Lease shall automatically renew for an additional period of
one (1) year on January 1 of each calendar year, unless the Lessor or
Lessee, ninety days before the termination date of this Lease, notifies the
other party in writing that it does not elect to renew for the additional one
(1) year period, in which event this Agreement shall expire in accordance
with its provisions on December 31 of the calendar year after the date of
such notice. The Lessor may terminate the lease in the event of a breach
by Lessee, by giving thirty days written notice. Lessor shall not terminate
this Lease by reason of a non-monetary breach of this Lease if Lessee in
response to such notice and within such thirty days both gives notice to
Lessor that it intends to, and in fact does, commence and diligently pursue
Page 1 of 7
January 1, 2002
a cure of such non-monetary breach to the point of actual cure. While this
lease contains no option to renew, and Lessor can make no binding
commitments, Lessor and Lessee both express their willingness to discuss
the desirability of negotiating a lease extension if Lessee desires to extend
at the time, in the light of the plans of Lessor and Lessee for the property
and for the business, respectively.
8. For occupancy of the Property Lessee agrees to pay to Lessor, and Lessor
agrees to accept from Lessee annual rent of $480.00. In the event this
Lease is automatically renewed, the annual rent owed by the Lessee shall
increase at an annual rate equivalent to the CPI for West Urban
Customers.
9. Unless otherwise directed by Lessor in writing, Lessee shall make all
payments due Lessor, on or before the due date and during normal
business hours, at City Hall, which is 216 E Park Street McCall, Idaho.
10. Lessee has examined and agrees to accept the Property in its present
condition. Lessor reserves the right to make alterations and
improvements to the park land between the water and East Lake Street,
provided that lessee's ability to exercise Lessee's right of access shall not
be permanently destroyed thereby.
11. Lessee shall use the Access Ramp and immediate shoreline area adjacent
to the State permit area only for access to a business of constructing,
assembling, repair, installation, and removal of docks, piers, and wharves.
Any violation of the terms of the State permit shall be a violation of this
Lease. Lessee shall take reasonable steps to discourage the public from
entering into the water areas within Lessee's log booms as depicted on
Exhibit "B". Lessee shall permit the public to use the Access ramp for
access to the water at points north of the log boom after business hours
and on weekends, but shall limit moorage to Lessee's boats and barges.
12. Lessee shall be solely responsible for the maintenance of the Access Ramp
and adjacent shoreline and water areas. Lessee shall maintain the Access
Ramp, signage, and landscaping and other improvements, in a condition
safe for public use, and otherwise clean, neat, in good maintenance,
repair, and appearance. Lessee shall upon request of the Lessor install
wooden guardrails along the north and south perimeter of the Access
Ramp so as to prevent parking along the side of the Access Ramp. Lessee
shall not make any changes in the property except in accord with Lessor
approval of designs for and site plans of Access Ramp. Lessee shall not
break ground, or remove vegetation prior to obtaining such approval.
13. Lessee at its expense will provide or see to the provision of all services,
utilities, labor, and materials needed for the Property, and pay all
accounts for services, utilities, labor, and materials supplied to the same
prior to their becoming delinquent. Any construction waste or debris,
excess or abandoned material such as removed docks, and garbage
Page 2 of 7
January 1, 2002
14.
15.
16.
17.
18.
19.
20.
21.
generated by the operation, shall be lawfully stored in such fashion as not
to escape, and they and any garbage or litter from whatever source on the
Access Ramp, or on the shoreline of the State permit area, or in the water
within the permit area, shall be removed periodically and shall never be
permitted to accumulate on the upland area.
Lessee and Lessor both anticipate that no taxes will become owing to any
jurisdiction by Lessor or Lessee with respect to Access Ramp. Should any
such taxes become payable they shall be paid by Lessee prior to their
becoming delinquent.
Lessee shall not store, and shall prohibit the storage of liquid fuels, other
combustibles, hazardous materials, and toxic materials within the Access
Ramp.
Lessee will maintain public liability insurance against personal injury and
property damage on Property or caused to persons or property off of the
Property by conditions on Property, in an amount of not less than
$500,000 combined single limit, and shall cause the Lessor to be an
additional named insured. Lessee shall maintain workers compensation
insurance in force during all periods of activity under this Lease.
Certificates of such insurance shall be filed with the City Clerk.
Lessee will comply with all ordinances, regulations, and laws affecting the
Property or its use, and will not use nor permit the Property to be used for
any unlawful purpose. All activity shall comply with the Shoreline and
Rivers Environs zoning restrictions, MCC 3-13-4 (A) s, and (as a matter of
contract) draft ordinance 615, section 3-15-040 (B) 4.
Lessee will not erect on the Property signs, poles, lights, nor advertising
devices, without prior written approval of Lessor, nor without first
securing building permits and paying the appropriate fees.
Lessee will not permit any materialmen's mechanic's laborers or other lien
of any nature to attach to the Property.
Lessee shall have sixty days after termination by the Lessor to remove any
of Lessee's structures and personal property; such period of time shall be
computed excluding times when the ground is covered by snow. Any dock
or other structure left within the Access Ramp or the State permit area
after the expiration of such sixty days, shall at the option of the Lessor
become the property of the Lessor. Any such left structure which in the
opinion of the Lessor is not of value, may be removed and disposed of by
the Lessor for the account of the Lessee, which shall be liable to the
Lessor for the cost of such removal and disposal.
If Lessee defaults in payment of rents specified herein or fails to do any
other act required by this Lease after thirty days written notice of
delinquency, Lessor has the option of terminating this Lease, re-entering
the property, and removing all persons and property from the Property.
Lessor has the option of doing any such act at Lessee's expense, and
Page 3 of 7
January 1, 2002
22.
23.
24.
25.
26.
charging such expenses to Lessee. Upon re-entering the Property, Lessor
may succeed to the benefit of and take over as direct Lessor some or all of
Lessee's contracts with Subtenants.
Lessee agrees to save Lessor and hold Lessor harmless against any loss or
liability for injury or damage to person or property occurring on the
Property or property adjacent to Property during the term of this Lease
arising from any act or omission of Lessee, its agents, employees, and
business invitees, or from any condition of the property created by Lessee,
its agents, employees, or business invitees.
The parties agree that the Property is truly unique, that the rent
contemplates solely the anticipated landscaping/park uses, and that
Lessor would not lease this Property other than to Lessee. Lessee will not
assign the lease nor sublet the Property. Any such assignment or
sublease will be void without such consent.
In the event of any default under this Lease, the non-defaulting party
shall be entitled to all rights, powers and remedies available at law or in
equity, including, without limitation, damages and equitable relief, and/or
resort to any security. Any rights, powers and remedies stated in this
Lease, or now or hereafter existing in law, at equity, by statute, or
otherwise are cumulative and concurrent, and shall each be in addition
to, and not in lieu of, all the others. The exercise or the beginning of the
exercise or the forbearance of exercise by any party of any one or more of
such rights, powers and remedies shall not preclude the simultaneous or
subsequent exercise by such party of any or all of such other rights,
powers and remedies.
The neglect of any party to enforce its rights, powers, or remedies at any
particular times or upon any particular occurrences shall not preclude
resort to those rights, powers or remedies at any other time or with
respect to any other occurrences. Any waiver of any right, power or
remedy must be done in a writing executed by the party to be charged
with such waiver, and executed with no fewer or different formalities and
approvals than were attendant upon execution of this Lease. Any deemed
a waiver of any other breach of the same or any other covenant, term or
condition of this Lease shall not constitute a waiver of the breach existing
prior to the performance, unless so agreed in writing by the recipient of
the performance.
Any prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor or material or reasonable substitutes
therefore, governmental restrictions, governmental regulations,
government controls, enemy or hostile government action, civil
commotion, fire or other casualty, and other causes beyond the
reasonable control of the party obligated to perform, shall excuse the
performance by such party for a period equal to any such prevention,
Page 4 of 7
January 1, 2002
27.
28.
29.
delay or stoppage; provided, however, that this clause shall not bar resort
by Lessor to any security applicable to the furnishing of such performance
under circumstances in which Lessor acting to obtain alternative
performance would not be subject to such force maieure. The term
"governmental restrictions, governmental regulations, government
controls...(and) hostile government action" shall not be construed to have
any reference to Lessor enforcing this Lease or any other agreement
between the Lessor and any other party, nor the Lessor enforcing the law,
nor any other government enforcing an agreement with a party or the
conditions on the issuance of its permit(s) issued to a party.
If any legal action or proceeding related to this Lease is begun by any
party to this Lease, the prevailing party shall be entitled to recover its
commercially reasonable attorneys fees and witness and expert witness
fees, incurred in prosecuting or defending the same, whether or not the
same is prosecuted to judgment. The Lessor shall be entitled to such fees,
if the prevailing party, notwithstanding the fact that the Lessor Attorney is
salaried.
Except as otherwise provided herein, in addition to the acts and deeds
recited in this Lease and contemplated to be performed, executed and/or
delivered by the parties, the parties hereby agree to perform, execute
and/or deliver or cause to be performed, executed and/or delivered any
and all such further acts, deeds, and assurances as any party hereto may
reasonably require to consummate the transactions contemplated under
this Lease.
Non-Appropriation. Lessor may terminate this Lease if the following
events shall have occurred and Lessee has received, not less than 60 days
prior to the end of Lessor's then-current fiscal year, a written opinion from
Lessor's counsel verifying the occurrence of said events:
A. In the event funds are not budgeted and appropriated in any fiscal year
for Payments due under this Lease for the succeeding fiscal year, or for
the acquisition of services, equipment or functions, which in whole or
in part are essentially the same as those being leased hereunder, this
Lease shall impose no obligation on the Lessor as to such succeeding
fiscal year and shall become null and void except as to the Payments
herein agreed upon for which funds will have been appropriated and
budgeted, and no right of action or damage shall accrue to the benefit
of Lessee, its successors and assigns, for any further payments;
B. If the provisions of Section (A) are utilized by Lessor, Lessor agrees to
immediately notify the Lessee or its assignee of this Lease that funds
are not budgeted and appropriated; and
C. Lessor made all payments due during the fiscal period immediately
preceding the fiscal period for which sufficient funds were not
appropriated.
Page 5 of 7
January 1, 2002
30.
31.
32.
33.
34.
35.
36.
This Lease is governed by the law of Idaho and Valley County, Idaho is the
proper venue.
Time is of the essence with respect to the obligations of the parties under
this Lease.
Any rights and remedies stated in this Lease are cumulative.
This Lease shall bind and inure to the benefit of the parties and their
respective heirs, successors and assigns.
All exhibits and other attachments, if any, to this Lease are a part of this
Lease. This Lease constitutes the entire agreement between and among
the parties as to the Property and all prior negotiations and discussions,
memoranda, correspondence, and communications respecting the
Property are merged into and extinguished by this Lease.
All parties to this Lease have been represented by legal counsel at all
stages of the negotiations for and the preparation of this Lease, including
during the proceedings relating to the approval and the conditions of
approval of any project or development which approval or conditions gave
rise to this Lease; accordingly, in all cases, the language of this Lease will
be construed simply, according to its fair meaning, and not strictly for or
against any party.
Notices between the parties may be made by personal delivery or by
United States mail, postage pre-paid, registered or certified, with return
receipt requested, or by telegram facsimile transmission or mail-o-gram or
by recognized courier delivery {e.g. Federal Express, UPS, DHL, etc.)
addressed to the parties, as the case may be, at the address set forth
below or at such other addresses as the parties may subsequently
designate by written notice given in the manner provided in this section;
the parties to this Lease shall accept oral communications and notice by
facsimile transmission at the following telephone numbers:
Lessee
Allen E. Congleton, Pres.
Inland Marine Construction, Inc.
P.O Box 593
McCall ID 83638-0593
634-2875(phone)
I~SSO~'
City Clerk
City of McCall
216 E. Park St
McCall ID 83638
634-7142(phone)
634-3038(fax)
Notice to Lessee will also be effective if Lessor posts notice upon the dock
at a time on or after Memorial Day through and including Labor Day.
Either party may change its address for notice by written notice.
Page 6 of 7
January 1, 2002
Dated:
Attest:
Cathleen A. Koch
Finance Director/City Clerk
Mayor
Its~. esident
Susan L. Con§leton
Its Secretary
Page 7 of 7
January 1, 2002