HomeMy Public PortalAbout1999.09.01 Inland Marine Construction Lease for Land for Park PurposesAddendum to the Inland Marine Construction, Inc. Lease With the City of McCall
This addendum is made this �Stday of Ser, 1999, between the City of
McCall, a Idaho municipal corporation ("Lessor") and Inland Marine Construction, Inc. a
Idaho corporation, ("Lessee") and is an addendum to that certain lease executed February
25, 1994, entitled ("Lease"), a copy of which is attached hereto or before.
Lessor and Lessee agree to extend the terms of the Lease from May 1, 1999
through April 30, 2000; provided, however, the parties understand that no assurances are
made as to the future renewal of the Lease. The Lessee shall pay four hundred dollars
($400.00) to the Lessor on the date of execution of this Lease and shall produce
certificates of insurance as provided in Section 16 of the Lease. Lessee shall also provide
the proof of the workers compensation insurance as provided in that same paragraph 16.
IN WITNESS WHEREOF, the parties have caused their names to be subscribed, all as of
the date herein first written below:
Lessee:
Inland Marine Construction, Inc.
Date
State of Idaho )
) ss.
County of Valley
�is `�� of in the year 1999, before m���, otary public, personally appeared , known
or identified to me be the of Inland Marine Const ction, Inc.,
whose name is subscribed to within the instrument, and acknowledged to me that he
executed the same.
Lessor:
Kirk Eimers, Mayor
City of McCall
Ciji Jq9
Date
Attest:
Cherry Wo
City of McCa 1
ury, City Clerk
Notary Pu)c for Idaho
My commission expires: 0 SP-a-/0 3
LEASE
This Lease is made February 25, 1994 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
1. 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.
2. Lessee has purchased from Kevin Muir a dock construction and repair business which
used access across such Lessor land. Lessee desires to operate such business at the
same location. Lessee will be seeking a permit, or a permit transfer or renewal, from
the Idaho Department of Lands for the use of the waters. Loading and unloading of
materials to this State permit site, and issuance of the State permit itself, both involve
approval of the Lessor as owner of the land between the road and the water.
3. Lessor views the dock business as a contributing factor to the public recreational
enjoyment of the Lake, and this Lease has been favorably recommended to the
City Council by Lessor's Park and Recreation Committee.
4. Mr. Muir as prior access holder constructed an access ramp and work area from
the edge of the traveled way of East Lake Street down to the waters edge ("Access
Ramp").
Agreements
5. 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 McCa11, 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.
6. This Lease is for a term commencing at 12:01 AM on May 1, 1994, and ending at
11:59 PM, April 30, 1999.
7. This Lease may be terminated by the Lessor 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 30 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 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 rental of $400.00 on or before the fifteenth day of
June of each year, commencing June 15, 1994.
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 East Park Street, McCall, Idaho. Lessee will install and
LEASE of MUNICIPAL PROPERTY page 1 of 6
Inland Marine Construction
remove Lessor's "no -wake" buoys at the direction of the Lessor's Recreation
Director in a timely fashion, i.e. prior to June 15, and after October 15, each year,
until otherwise directed by the City. Lessee shall upon each occasion Lessee
complete installation or removal invoice Lessor for such services in the amount of
1/2 of the rent due under this Lease. Lessee shall provide on such occasions its
tugboat, a barge, and a tugboat operator. Lessor shall locate the buoys and will
provide not less than two employees of Lessor to assist each time.
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 guard rails 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 in place, 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 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.
14. 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.
15. Lessee shall not store, and shall prohibit the storage of liquid fuels, other
combustibles, hazardous materials, and toxic materials within the Access Ramp.
16. 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
LEASE of MUNICIPAL PROPERTY page 2 of 6
Inland Marine Construction
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 annually with the payment or with the June performance under
paragraph 8 and 9 above
17. 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 Shorelines and Rivers
Environs zoning restrictions, MCC 3-13-4 (A) 2, and (as a matter of contract)
draft Ordinance 615, section 3-15-040 (B) 4, an excerpt of which is set out on
page 6 of this lease as Exhibit "A."
18. 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.
19. Lessee will not permit any materialman's, mechanic's, laborer's, or other lien of any
nature to attach to the Property.
20. 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 Lessee, which shall be
liable to the Lessor for the cost of such removal and disposal.
21. 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.
22. 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.
23. 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.
24. 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.
LEASE of MUNICIPAL PROPERTY page 3 of 6
Inland Marine Construction
25. 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
waiver of a breach of a covenant, term or condition of this Lease shall not be
deemed a waiver of any other breach of the same or any other covenant, term or
condition of this Lease. Acceptance of overdue performance of a 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.
26. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of
God, inability to obtain labor or materials or reasonable substitutes therefor,
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 majeure. 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 permits) issued to a party.
27. 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.
28. 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 consumate the
transactions contemplated under this Lease.
29. This Lease is governed by the law of Idaho, and Valley County, Idaho is the
proper venue.
30. Time is of the essence with respect to the obligations of the parties under this
Lease.
31. Any rights and remedies stated in this Lease are cumulative.
32. This Lease shall bind and inure to the benefit of the parties and their respective
heirs, successors and assigns.
LEASE of MUNICIPAL PROPERTY page 4 of 6
Inland Marine Construction
33. A11 exhibits and other attachments, if any, to this Lease area 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 Properlty are merged into and extinguished by
this Lease.
34. 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.
35. 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, DILL, 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
facsimle transmission at the following telephone numbers:
Lessor
City Clerk
City of McCall
P. O. Box 1065
McCall, ID 83638-1065
634-7142 (voice)
634-3038 (facsimile)
cc: City Attorney
same address & phone
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.
Dated: February 25, 1994
Attest:
Lessee
Allen E. Congleton, Pres.
Inland Marine Construction, Inc.
P. O. Box 593
McCall, ID 83638-0593
634-2875 (voice)
634- (facsimle)
Arth J. Schmidt,
City Clerk
LEASE of MUNICIPAL PROPERTY
Inland Marine Construction
Dean Martens, Mayor
Inland Marine Construction, Inc.
by:
Allen E. Co
Its President
leton
by: 'fir ? 4/6?
Its Secretary
page 5 of 6
State of Idaho )
) ss.
County of Valley )
On this .7.0- day of February, in the year 1994, before me,
5.i15an A . r\ , notary public, personally appeared Dean Martens, known or
identified to me to be the Mayor of the City of McCall that executed the said instrument,
and acknowledged to me that such City of McCall executed the same.
State of Idaho
) ss.
County of Valley
4(407(
Notary Public for Idaho
My commission expires: // lq7
On this day of February, in the year 1994, before me,
, notary public, personally appeared Allen E. Congleton
and , known or identified to me to be the President and the Secretary,
respectively, of Inland Marine Construction, Inc., the corporation that executed the said
instrument, and acknowledged to me that such corporation executed the same.
Notary Public for Idaho
My commission expires:
LEASE of MUNICIPAL PROPERTY page 6 of 6
Inland Marine Construction
"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 built with chemically inert materials. and foam materials shall
be fully 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 Exhibit "A," page 1 of 1
Inland Marine Construction
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