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Home My Public Portal About2000.07.27 Inland Marine Construction Lease for Land Dedicated Mill ParkLEASE This Lease is made July 27, 2000 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. Background 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"). A~reement 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 July 27, 2000, and ending at 11:59 PM, December 31, 2000. The Lessor or Lessee may terminate this Lease upon ninety days written notice prior to the expiration date of the lease. 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 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 Page 1 of 6 duly 27, 2000 Inland Marine Construction Lease 10. 11. 12. 13. 14. 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. For occupancy of the Property Lessee agrees to pay to Lessor, and Lessor agrees to accept from Lessee annual rent of $450.00. 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. 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. 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. 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. 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 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 Page 2 of 6 July 27, 2000 Inland Marine Construction Lease 15. 16. 17. 18. 19. 20. 21. 22. 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 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 Page 3 of 6 July 27, 2000 Inland Marine Construction Lease 23. 24. 25. 26. 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, 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 Page 4 of 6 July 27, 2000 Inland Marine Construction Lease 27. 28. 29. 30. $1. $2. 33. 34. 35. 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. 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; Page 5 of 6 July 27, 2000 Inland Marine Construction Lease Dated: 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) Lessor 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. July 27, 2000 f.~ll~n huller, lViayor- Attest: Cathiee'n-A. K~)ch, City Clerk Inland Marine Construction, Inc. ~llen E. Con~leto~ Its President Susan L. Congleton Its Secretary Page 6 of 6 July 27, 2000 Inland Marine Construction Lease "Exhibit A" An excerpt from Ordinance 615 as drafted by Joint Planning and Zoning Commissions, 1993, for public hearing in .fall of 1993, and incorporated in this lease as standards for use of water end of street right-of-way. 4. Private docks and piers shall: (a) Require a building permit from the City in addition to the permits required by the State Department of Lands, or other authorities having jurisdiction. (b) Be used to provide access to boats. (c) Be floating or held on pilings.. _. (d) .Be _bu._fit with chemically_~_e.n__m~aterials~ and foam materials shall_. _ t~e tully enclosed. (e) Not be constructed in whole or part by or in association with excavation or dredging, unless a conditional use permit has first been issued. LEASE of MUNICIPAL PROPERTY Inland Marine Construction Exhibit "A," page 1 of 1 high water line ~cCaU'~ I s! I I"= 25' PROPOSED DOCK East Shore of for HSW Kerr Surveying, McCall, 7/er hne ~ ill Park 50 cu. yds. of fill. material P___ROPOSED D~OCt( BUILDING FACILITY East Shore of' Payette Lake for H~ W INC Kerr Surveyxng , McCall, Idaho .= Dec., 1985 ACORD.CERTIFICATE OF LIABILITY IN`=`' 'r .... ;;x :,x,:: ~U. ~,a"'~'~l ~, ~'-'~S:?ft,~,ZL I 0!5/05/00 PRODUCER First Security Insurance 2-8 3295 Elder Street, Suite 209 Boise ID 83705 Phone: 208-393-4641 Fax: 208-344-8241 INSURED Inland Marine Construction Inc P. O. Box 593 McCall ID 83638 THISCEIRTIFtCATEIS:SSU~EASA MAFU~!RC: qFORMATICN ONLY' AN:) CONFERS NO R:GHTS UPOb THE C'EFTIFIgATE HOLDER. THIS CERTIFICATE DOES NOV A'~IEI'tD, EXTEND OR ALTER THE C,DVERAGE AFFORDED BY T-E P~L:CIE$ BELO\',L INSURSRS AFFOF:DI!qG CC i INSURERA anler ~ caz'l INSURER B INSURER C INSURER D INSURER E : COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLIC'~ FERIOD INDICAT£S N3 ?&q r-S [,AN 3NB ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THiS CERTIFi(;A 'E fV A":' B~ [:[;.J ~S CR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TEE, MS, 5XCLUS~ON[~ AND ZO~JE I-I POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS ~Sl -'-P~ E f~"~-~ ~TiV ~ ~OLICY EXPIA~'q~ .TF ~PE OF INSU~NCE POLICY NUMBER DATE (MM/DDt) CATE A A A GENERAL LIABILITY ~ COMMERCIAL GENERAL LIABILITY .~] CLAIMS MADE i~X~] OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: -q POLICY ! .... }PRO- ~-- JECT ! q LOC AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS qHIRED AUTOS NON-OWNED AUTOS RAAGE LIABILITY NY AUTO %XCESS LIABILITY iOCCUR L_~[ CLAIMS MADE DEDUCTIBLE RETENTION $ WORKERS COMPENSATION AND EMPLOYERS'LIABILITY OTHER , Property Section 01CE5666212 05/01/0C o~ [ o5/o1/oc 05/01/02 05/01 01CE5666212 o5/ol/oo 05/01/01 DES~R~P~N~F~PE~T~NS/L~AT~NSNEH~LES/E~CLU~NSADDEDBYEND~RSEMENT/SPE~ALPR~V~S~NS Certificate holder is additional insured with respects the named insured. operations cf t:ke CERTIFICATE HOLDER ] N J ADDITIONAL INSURED; INSURER LETTER: CANCELLATION City of McCall Public Works 815 Samson Trail McCall ID 83638 ACORD 25-S (7/97) CCCCCCC SHOULD ANY OF TF E ABOVE DESCRIBED F'OLICIEE EE CANCE L.L, ED BEFORE TiE i~' PIRATION DATE THEREOF, TltE ISSUING INL" U RU.R ,NI .L. EhDE&VC R TC' ~/AIL ~. 0 D~YS ,NRITTEN NOTICE TO I'FE CERTIFICATE ,'lC .I;ER NA ~E] 'O "HE LEFT, f J'r :¢~,. LRE lO 3C) SO SHALL I~POSE NO OJLI6.~TION OR LJ&[~IL. TV (IF ~q~ ~(:N; JPOh Ti-.~ I~ ~, I;:[ ;: T',;, AGE '7S OR REPRESENT&TIVES. Steve Aoa~h E ,a C O R D C ( i; I:' (] RAT I C N 1988