HomeMy Public PortalAbout2017.12.14 Migh Hile Marina Lease ExtensionLEASE EXTENSION
THIS EXTENSION TO LEASE is made and executed on this 14 day of December, 2017,
by and between the City of McCall, Idaho, an Idaho municipal corporation and government
subdivision of the State of Idaho, organized and existing by virtue of the laws of the State of
Idaho, hereinafter referred to as "Lessor", and Mile High Marina, LLC, an Idaho Limited
Liability Company, hereinafter referred to as "Lessee", for and in consideration of the mutual
premises herein contained.
WITNESSETH:
WHEREAS, Lessor is the current Lessor under that certain Lease (hereinafter referred to
as "Lease") dated May 12, 2005 and executed by Lessee where under, the Lessor leases to
Lessee, and Lessee leases from Lessor, the west boundary of Lakeshore Boulevard, being the
high water mark of Big Payette Lake between the extension of the north boundary line of lot 5,
block 4, McCall, first addition to the Village of McCall, Idaho, as extended westerly to the high
water mark of Big Payette Lake and the south boundary line of lot 1 of said block 4, extended
westerly to the west boundary line of said Big Payette Lake (the "Leased Premises"). A map of
the Leased Premises is attached to the original Lease as Exhibit "A". For informational purposes,
the Leased Premises consist of improved and unimproved real property adjacent to lands leased
by Lessee under a State of Idaho Department of Lands Lease ("Submerged Land Lease"); and
WHEREAS, the Parties acknowledge that Lessee exercised the option to extend the term
of the Submerged Land Lease from January 1, 2018 through December 31, 2027; and
WHEREAS, the term of this Lease is to be coincident with the term of the Submerged
Land Lease as extended from time to time.
NOW THEREFORE, the parties agree as follows:
1. "Lessor" and "Lessee" hereby mutually agree, pursuant to the Original Lease
Page 1 of 4
Mile High Lease Extension
December 14, 2017
(Attachment 1) under 2. Lease Term A., (to extend the term of said Lease for an additional
period of ten (10) years, to -wit: from January 1, 2018 to December 31, 2027. Consistent with the
terms and conditions of the Submerged Land Lease, Lessor grants to Lessee the option to renew
this Lease for an additional ten (10) year term commencing upon the expiration of the original
Lease or subsequent Leases. Lessee understands and agrees that the Lessor, at its discretion, may
choose to renegotiate the terms and conditions offered in any renewed lease and the Lessee
understands and agrees that the terms and conditions in a renewed lease may be different than
this lease.
2. "Lessor" and "Lessee" hereby agree that the rent during the extended term shall be
as follows: The annual gross rent shall be a percentage of the annual gross boat slip rental
receipts charged and collected by Lessee. The annual gross rent shall be determined by
multiplying the total gross receipts for boat slip rental by four percent (4%). For example, if the
gross annual receipts for rent of boat slips is $250,000, the rent would be $10,000 (i.e., $250,000
x .04 = $10,000). The rent shall be paid on December 1 of each year commencing December 1,
2018, and on the same date of each consecutive year thereafter during the term of this lease, as
extended. The rental payment shall be accompanied by a verified report or certificate of gross
annual rental receipts for boat slips together with Lessee's calculation of annual rent as set forth
above and described below.
3. Compliance with the Laws. Lessee's use and occupancy of the Premises for the
conduct of its business operations shall comply with all applicable laws, ordinances, and
requirements of the City of McCall, Valley County, the state of Idaho and the federal
government.
4. Whether or not gross receipts rent is due, Lessee shall provide to Lessor a verified
report of gross receipts and the supporting tax return or sales tax report filed with the Internal
Page 2 of 4
Mile High Lease Extension
December 14, 2017
Revenue Service or Idaho State Tax Commission for the previous calendar year. Said report and
any rental due thereunder shall be due by April 1 of each year.
5. Other than replacing the existing breakwater with a breakwater of similar size and
dimension, any future additions or expansions of the marina or related structures and
improvements thereon must be approved in advance by the McCall City Council, which approval
will not be unreasonably withheld. Conditions of approval by the Council for the additions or
expansion will be reasonably related to the impact of the addition or expansion will have upon
Legacy Park and may include reasonable public access.
6. In all other respects the Lease is confirmed and is not changed or affected, except
as hereinbefore set forth.
IN WITNESS -_ WHEREOF, the parties hereto have executed this Lease Extension on
he(h/(,2017.
Attest:
BessieJo Wagner, City C rk
LESSOR:
CITY OF MCCALL, a Municipal Corporation
JAC sR J. A ON, Mayor
STATE OF IDAHO, )
:ss:
County of Valley, )
On this ((' day of l)(�fIVIA/ e , 2017 before me the undersigned, a Notary Public
in and for said. State, personally appeared Jackie J. Aymon, Mayor and BessieJo Wagner, City
Clerk of the City of McCall, whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
NO Ks,.,tlT.y/.iijio
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( '.Ai oTARY
PUBLIC
Mile High Lease Extension �''4lie P %
December 14, 2017 i�ii/iiii tit00%%`�
Notary Pu ; is tC y of McCa1
My Commission Expires:
Page 3 of 4
LESSEE:
MILE HIGH MARINA, LLC, an Idaho Limited Liability Company
STATE OF IDAHO,
. ss:
County of Valley,
BY:
47/1/042/
SAMUEL L WORLEY, mber
�uU0'
On this i day of UPN � , 2011, before me, the undersigned, a Notary Public
in and for said State personally appear James G. Gerblick and Samuel L. Worley, known or
p Y pP Y�
identified to me to be Members of Mile High Marina, LLC, whose names are subscribed to the
within instrument, and acknowledged to me that they executed the same on behalf of said limited
liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Nary ublic for ►' D
Co mission Expires:
Mile High Lease Extension
December 14, 2017
i
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/ pot21
Page 4 of 4
ATTACHMENT 1
LEASE
This Lease, is entered into this 1 04-' day of May 2005, by and between the City of McCall,
Idaho, a Municipal Corporation, hereinafter called ("Lessor"), and Mile High Marina, LLC, an Idaho
Limited Liability Company, hereinafter called ("Lessee").
1. Lessor hereby leases to Lessee the following described real property, to wit:
The west boundary of Lakeshore Boulevard, being the high water mark of Big Payette
Lake between the extension of the north boundary line of lot 5, block 4, McCall, first addition to
the Village of McCall, Idaho, as extended westerly to the high water mark of Big Payette Lake
and the south boundary line of lot 1 of said block 4, extended westerly to the west boundary line
of said Big Payette Lake (the "Leased Premises"). A map of the Leased Premises is attached
hereto as Exhibit "A" and incorporated herein by reference. For informational purposes, the
Leased Premises consist of improved and unimproved real property adjacent to lands leased by
Lessee under the State of Idaho Department of Lands Lease.
2. Lease Term.
A. The term of this Lease shall be coincident with the term of the Submerged Lands
Lease from the Idaho Department of Lands for the Marina Lease assumed by Lessee on February
23, 2005 as said Submerged Lands Lease is extended from time to time. For informational
purposes, the Submerged Lands Lease continues until the close of business December 31, 2007.
A copy of the Submerged Lands Lease is attached as Exhibit `B" and incorporated herein by
reference. The parties to this Lease may mutually agree to extend this Lease for an additional
period of ten (10) years. This Lease may be terminated upon written agreement of the parties.
B. If Lessee defaults in any of Lessee's insurance obligations described in Section 5
of this Lease, Lessor at its option and in addition to all other legal and equitable remedies, may
declare this Lease forfeited and terminate the Lease upon written notice to Lessee. Upon such
termination, all rights of Lessee under this Lease shall immediately terminate.
C. If Lessee defaults in any other of its obligations under this Lease, Lessor shall provide
written notice of default to Lessee. If said default is not cured by Lessee to the satisfaction of.
Lessor within sixty (60) days, Lessor shall have the right to immediately terminate this Lease
upon written notice to Lessee. Upon such termination, all rights of Lessee under this Lease shall
immediately terminate.
3. Use.
A. In addition to the uses described in the Submerged Lands Lease, the Leased
Premises are to be used by Lessee for parking and displaying recreation equipment that is for sale
and lease by Lessee. The parties to this Lease may agree to other uses of the Leased Premises
upon written agreement of the parties. Lessee's use is subject to Lessee being in compliance
ATTACHMENT 1
with all federal, state, and municipal laws, including, tenants "plans", now or in the future, to
alter, improve, change, maintain and repair the current building, docks, decks, etc. as Lessee
deems necessary; provided said changes, alterations, and additions do not conflict with existing
federal, state, and/or municipal laws/ordinances.
B. Lessee shall at all times maintain all buildings, docks and other appurtenances
related to Lessee's marina business in a safe and functional condition. Lessee shall immediately
repair, replace or remove docks and other structures in accordance with the schedule attached
hereto as Exhibit C, and by this reference fully incorporated herein. The improvements described
in Exhibit C are hereby approved by the Lessor.
C. Any and all changes to the Leased Premises must be approved by the Lessor in
writing before Lessee may make any changes. Any additional alterations, changes, or additions
to the Leased Premises or to current buildings, docks, and other appurtenances must be in
compliance with all applicable federal, state, and municipal laws.
4. Rent. The annual gross rent shall be a portion of the annual gross boat slip rental receipts
charged and collected by Lessee. The annual gross rent shall be determined by dividing the total
gross receipts for boat slip rental, divided by the number of boat slips, multiplied by 3. The
current number of boat slips is 180. For example, if the gross annual receipts for rent of boat
slips is $200,000, and the current number of slips available for rental during 2005, (i.e., 180 slips
in calendar year 2005) the rent for 2005 would be $3,333 (i.e., $200,000 / 180 = $1,111.11 x 3 =
$3,333.33). The annual rent will be adjusted by the actual number of boat slips available for
rental each season. The rent shall be paid on December 1 of each year commencing December
1, 2005, and on the same date of each consecutive year thereafter during the term of this lease, as
extended. The rental payment shall be accompanied by a certificate representing the gross annual
rental receipts for boat slips only together with Lessee's calculation of annual rent using a
numerator of 3 and a denominator representing the total number of boat slips available for rental
during each calendar year.
5. Lessee's Insurance requirements; Limitation of Lessor's Liability; Indemnification.
As an essential part of the consideration to induce Lessor to enter into this Lease; Lessee
agrees as follows:
A. This Lease is made on the express condition that Lessee shall, at Lessee's sole
expense, maintain at all times during the term and any renewals of this Lease adequate property,
general liability, auto liability and worker's compensation and employer liability insurance
coverage each with limits of no less than one million dollars, naming Lessor as an additional
insured or loss payee, as appropriate, and covering among other things, all boats and other
property using the Leased Premises, by Lessee for itself and for its clients. Lessor shall not be
responsible for security, theft, vandalism or damage, if any, to such property caused by fire,
water, structural collapse or failure or from any cause whatsoever. Lessor shall have the right at
any time to inspect the Leased Premises for the purpose of inspecting the condition of the Leased
Premises and for any other purpose consistent with the terms of this Lease.
ATTACHMENT 1
B. This Lease is made on the express condition that Lessor shall be free from all
liability and claims for damage by reason of injuries of any kind to any persons, including
Lessee, or any property of any kind, including the boats and other property of Lessee's clients,
regardless of who owns the property, from any cause or causes while in, upon or in any way
connected with the Leased Premises during the term of this Lease or any extension or renewal
hereof. Lessee agrees to indemnify and hold Lessor harmless from any liability, loss, cost,
obligation or claim on account of or arising out of any such injuries or losses, however occurring.
6. Taxes. Lessee hereby agrees to pay all taxes and assessments of every kind or nature
levied or assessed against said Leased Premises during the term of this Lease.
7. Condition. Lessor shall have no duty to maintain during the term of this Lease, any part
of the Leased Premises. In the event that repairs are required, Lessee shall immediately notify
the Lessor and Lessor, shall determine, in Lessor's sole discretion, whether, when and how such
repairs will be made, if at all. Any spills of petroleum, boat fuel, oil or any other substances
during the term shall be fully cleaned up by Lessee, and Lessee shall be responsible for all
remediation costs and other liabilities connected therewith.
Lessee agrees to keep and -maintain the Leased Premises in a condition as good as
originally leased, ordinary wear and tear excepted.
8. Modification. This Lease shall not be modified or amended without the written consent
of the parties.
9. Assignment/Sublease. Upon prior written permission of the Lessor, Lessee may assign,
sublease or otherwise convey Lessee's leasehold interest in the Leased Premises or any portion
thereof.
10. Binding Effect. The terms and conditions contained herein shall be binding upon and
inure to the benefit of the parties and their successor and assigns.
11. Attorney's Fees. If any action is instituted to enforce any covenant contained in this
Lease or to recover any rent due or to recover possession of the Leased Premises for any default
or breach of this Lease by Lessee, then Lessee shall pay such reasonable attorney fees and costs
to the Lessor as may be determined by the court.
12. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced
in accordance with the laws of the State of Idaho.
13. Effect of Partial Invalidity. The invalidity of any part of this Lease will not and shall not
be deemed to affect the validity of any other part. In the event that any provision of this Lease is
held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full
force and effect as if they had been executed by both parties subsequent to the expungement of
the invalid provision.
ATTACHMENT 1
14. Waivers. Waiver by Lessor of any breach of any covenant or duty of Lessee under this
Lease is not a waiver of a breach of any other covenant or duty of Lessee, or of any subsequent
breach of the same covenant or duty.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the effective day of
j a May, 2005.
LESSOR: LESSEE:
CITY OF McCALL, a Municipal Corporation MILE HIGH MARINA, LLC, an. Idaho
Limited Liability Company
By:
KIRK EIMER , ayor
By.
Attest: �G„_ G��-, By:
Dan Irwin, City Clerk
S G. LICK, ember
WILL . FAIRFIELD, Member
ATTACHMENT 1
Mile High Marina LLC T ease Agreement
Exhibit A
EXHIBIT A
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ATTACHMENT
ATTACHMENT A
1. Rent.
Lessee shall pay the Lessor, at rent for the leased site, the following amounts, determined and payable in the
manner and at the time set forth herein; without abatement, offset or deduction of any kind, unless allowed by
this lease. 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.
A. Rent for marina and ship's store. Annual rent shall be a base of TWO HUNDRED AND FIFTY
DOLLARS ($250.00) for marina and TWO HUNDRED AND FIFTY DOLLARS ($250.00) for'ship's store
minimum, due by January 1 of each .year. During a given year, if the annual gross receipts as
calculated below is greater than the base rent of TWO HUNDRED AND FIFTY DOLLARS-($250.00)
and -TWO HUNDRED AND FIFTY DOLLARS ($250.00) for ship's store, then additional rent is due for
that year and payable by April 1.
B. Gross Receipts Rent and Report. Gross receipts rent and report shall apply to marina and ship's etore
only: Gross receipts rent for the marina is 3.75%, and gross receipts rent for the ship's store is 2%.
Lessee shall calculate and report annual gross receipts for the previous calendar year (January 1
through December 31) by April f following the end of each lease year. The: Lessee shall submit the
gross receipts documentation, as described below, without furthernotification. Failure to provide such
documentation by April 1 shall be cause for. Lessor to declare a default herein and terminate the lease
upon thirty (30) days written notice.
is Lessee,shall calculategross receipts rent as follows: annual gross receipts multiplied by
percentage less the base rent, equals gross receipts rent (e.g. Gross Receipts x 3.75 % - base =
gross receipts rent): If the percentage of gross receipts totals less than the base rent, no gross
receipts rent shall be due.
ii. Whether or not gross receipts rent is due, Lessee shall provide to Lessor a verified report of gross
receipts and the.supporting tax "return or sales tax reportfiled with the, Internal Revenue Service or
Idaho State Tax Commission for the. previous calendar year: Said report and any rental .due
thereunder shall be due by April 1 of each year.
iii If a marina makes all of its marina facilities available to the -public on a first -come, first -served
basis, the rent for boat moorage shall, be discounted by.twenty-five percent (25%); except that the
rent, after discount, shall not be less than Two Hundred Fifty dollars ($250.00).
C. Annual Rent Subject to Modification. Lessor reserves the right to increase or decrease the annual rent to
be paid by the Lessee. The increase or decrease for the year shall be effective as of January '1 and
payable by January 1. Lessor shall provide Lessee written notification one hundred and eighty (180)
Calendar days prior to the change .in`the annual lease amount.
D. Late. Payment Fee: Any late payment of rent shall be cause for the Lessor to declare a.;default herein;
and terminate the lease upon a thirty (30) days written notice. If any rent payment is not made to Lessor
by the date due or -as provided herein, the Lessee shall pay to the Lessor, as a late payment fee an
amount equal to $25.0.0 or one percent (1 %) of the amount due, whichever is greater, plus one percent
(1%) per month of any amounts..due, including interest, until Paid in full.
2. Use of.Premises.
The Leased Site shall be used for marina and ship's storein accordance with Encroachment Permit #L-65-S=
372F and.any successor permits). 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 Prier written adjustment of this Lease.
Agreement.
3. Insurance.
Lessee shall purchase And keep in force all insurance required by this lease, including business interruption
insurance, if required by the Lessor, to assure payment of the annual rent. Any failure to comply with any of
the terms of this section shall be grounds for immediate termination of this lease.
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..
Commercial Submerged Lands Lease No. B-5007
Attachment A
Page 1 of 7
ATTACHMENT 1
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), or the equivalent. Each annual aggregate limit shall not be
less than One Million Dollars ($1,000,000), when applicable:
B. Property Insurance. Lessee shall throughout the term of this lease at its own expense, .keep and
maintain in full force and effect, property insurance for what is'cemmonly referred to as 'All Risk"
coverage, excluding earthquake and flood, on Lessee's improvements and personal property.
C. Workers' Compensation. Lessee shall maintain all required coverages including Employer's Liability.
D. 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 shall 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.
E. Insurance Policy Requirements: All insurance required under this paragraph shall be with companies
approved by Lessor. No insurance policy required under this section shall be cancelled or reduced in
coverage except after thirty (30) calendar days prior written notice to Lessor. All insurers shall have a
Bests' rating of A- or better and be authorized to do business in the State of Idaho. Lessee shall deliver
to. Lessor prior to occupancy and at least annually thereafter, copies of policies of such Insurance or
certificates evidencing the existence of the minimum required insurance and evidencing Lessor as
Additional Insured thereunder. In no event shall the limits of any, insurance policy required, under this
section be considered as limiting the liability of Lessee under this lease.
Lessee shall provide certificates of insurance or other documentation certifying Lessee's possession of
insurance policies required herein to Lessor within ten (10) days of 'Lessor's. written request.
4. Lease Term And Renewal Conditions.
A. Lessor -grants to Lessee the option to renew this Lease for additional ten (10) year terms commencing upon
the expiration of the original Leese or subsequent Leases, provided that the Lessee shall submit en
application. for renewal by April 30 of the year of expiration of the lease. Lessee understands and agrees
that, the Lessor has the sole discretion relating to the terms and conditions offered in any renewed lease
and understands and agrees that the terms and conditions in a renewed Lease may be materially different
than this lease:
B: Lessor will not consider a lease renewal uhless the following conditions have been met;
i. All rent due has been paid in full;
ii. All Lessee gross receipts reporting requirements have been met;
iii. Lessee continues to hold a valid Encroachment Permit and has complied with all provisions of the
Encroachment Permit; and
iv. Lesseehas complied_ with all provisions of this Lease and fully and, faithfully p.erforined all obligations
herein.
5. Bond.
Bonding is not required at this time. At the. sole discretion of the Lessor; bonding may be required. Lessee
shall have sixty (60) days from the date of notice to comply with any bonding requirements.
6. Sublease and Assignment.
A, Sublease. This lease may not be "subleased without Lessee first obtaining the prior written consent of
Lessor, or Lessor's designee. No request for Lessor's approval. of any Sublease will be censidered`unless
Lessee is in good standing under the terms of the Lease.
Commercial Submerged Lands Lease No. 8-5007
Attachment _A
Page 2 of 7
ATTACHMENT 1
B. Assignment. No portion of this lease may be assigned 'without Lessee first obtaining the prior written
consent of the Lessor or Lessor's designee. Applications for Lease Assignment must be completed on
Lessor provided.: forms. No request for Lessor's approval of any Assignment will be considered unless
Lessee is in good standing under the terms of the Lease.
C. Proof of Assignment. To assign the Lessee's interest, Lessee must provide; appropriate documentation to
the Lessor for approval. of an assignment. This may include, but not be limited to, the agreement or
contract of sale ortransfer, having been acknowledged by the Assignee and Assignor, a, letter from Lessee
indicating the transfer of the lease as a gift; a divorce decree; a will or probate order; or other
documentation as may be required to establish new or transferred ownership of improvements
7. Lessee's -
..Compliance with Applicable Laws and Rules.
A. rull Compliance. Lessee's use of the leased site and all improvements constructed thereon, shall fully
comply with all statutes, ordinances, rules, regulations and laws of applicable federal, state and local
governmental authorities. Lessee shall comply with all applicable rules and regulations and standards
currently, in effect or hereafter adopted by the Idaho State Board of Land Commissioners orthe Idaho
Department of Lands.
B. No Waste or Nuisance. Lessee shall not use the leased site in any manner thatwould constitute waste,
nor shall the Lessee allow the same to be committed thereon. The Lessee shall not do anything or allow
-any action which -will create a nuisance or a danger to persons .or property.
8. EnvironmentaLSafety, 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 laws, rules and regulations pertinent to Lessee's use. The Lessee shall store
and dispose of all trash and garbage in 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 the rules of the
Department of Lands for fire protection and prevention of fire. Lessee agrees to keep the leased site.
free from fire hazards. Lessee is prohibited from burning garbage or household trash. The burning of
wood orother debris requires the prior written Permission of Lessorand-mustcomply with applicable
federal, state, oriocal law, regulation, rule, or ordinance:
C. NaHazardous Materials: Lessee shall neither use nor permit upon the leased site or premise the use,
placement, transport or disposal of any hazardous waste dr any other substance that is or i$ suspected
:tote a hazardous substance or material except as provided by federal, state or local laws, regulation or
ordinance of manufacture. Lessee shall be responsible, at its own expense; for removing or taking other
appropriate remedial action regarding such wastes, substances, or materials which Lessee may cause
to be introduced; 'in accordance"with applicable federal, state, or local laws, regulations; or ordinances.
9. No Warranty of Suitability.
A. No Warranty. Lessee acknowledges that neither 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," and accepts liability for its condition.
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.
10. Payment of Taxes and Assessments.
On or before any due dates, the Lessee agrees to -pay any and all real or personal property taxes,
assessment or fees that may be assessed or levied by,a ,governmental 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.
Commercial Submerged Lands Lease No. B=5007
Attachment A
Page 3 of 7
ATTACHMENT
11.-Construction.and Improvements.
Construction of improvements. Lessee may construct improvements upon -the leased site under limited
circumstances in accordance with the following:
A: Lessee must first obtain the prior written consent of Lessor or Lessor's Designee.
B. Lessee must fumish a.complete set of construction plans and an accurate plot plan of all proposed
improvements contemplated by Lessee and submit those plans and drawings to Lesso_ r or Lessor's
designee Afterthe coristruction plans and plot plan have been approved in writing by thelessor; then
the construction of the improvements must be in full Compliance with all conditions under this lease.
C: Liens or Encumbrances. Lessee has no authority to and shall not place a lien or encumberatete land
or state, owned improvements: 'The Lessee shall not,ce a plalien or encumber the lease or Lessee
owned improvements unless given written consent by the Lessor.
D. Treatment of Approved Improvements upon lease expiration without renewal, or termination or default
Underthe lease;
i. Upon expiration without renewal or termination, or default ofthe Lease, Lessor shall have the right
to require Lessee to":remove all improvements, placed upon the leased premises; and to require
Lessee to restore the leased premises to its. natural or previous condition, all at Lessee's sole -cost
and expense:
ii: Upon Lease expiration_ without renewal, or termination or default under the lease, Lessor has the
right to enter the premisesend remove any of the improvements, .or otherwise dispose of epch
improvements, and charge the cost of removal and/or disposal and restoration to Lessee. Lessee
shall also be responsible-forall collection costs, including legal fees and interest, Lessee_ .shall
quietly surrender the leased site to Lessor.
iii. Upon Lease expiration without renewal, or termination or default under the lease, at Lessor's sole
option; Lessor reserves the right to purchase such approved improvements from Lessee et market
value. Market value is defined in this lease as "The most probable price, es of.a specified date, in
cash, or in -terms equivalentto cash, or: in other precisely revealed terms. for which the specified
.property rights should sell, efter.reasonable exposure in a competitive market under all conditions
requisite toe felt.sele, with the buyer and seller eePh acting prudently, knowledgeably, and for self,
interest and assuming thet neither is under undue duress."
iv. If the removal of Lessee; improvements- has. not occurred by the date that the lease expires or by the
date of Lessee default, all rights, title and interest of the Lessee to any of the improvements. shall,
upon thirty130) days written notice to.Lessee, or at a date determined et the sole discretion of the
Lessor but not less than thirty-(30) days, be deemed to revert to the State of Idaho and shall be
considered abandoned in place by the Lessee.
E. Treatment of Non=approved,improvements "at any time,during the lease and upon lease expiration
without renewal, or termination, .or default under the Lease.
i. Lessor sheil have the right to require Lessee to remove all non -approved improvements placed or
caused to be placed. Upon, the leased premises, and to require Lessee to "restore the leased
premises to its natural or. previous condition, all .at Lessee's sole cost and 'expense; If removal as
described. above has not occurred by the date that the lease expires andthe lease has not been
renewed, has been terminated, or at the date of the Lessee default, all rights to title and interest of
the Lessee to any of the non -approved improvements .shall, upon thirty (30) days written.notice to
the Lessee; or at a date determined at the sole. discretion of the Lessor,:but not less than thirty (30)
days, be deemed to revert to'the State of Idaho, and shall be considered abandoned in place`by the
Lessee:
ii. Any no.n=approved improvements not removed by the Lessee may be removed by the, Lessor.at the
Lessee's -sole _cost and expense.. Any legal feesand collection costs Incurred,by the Lessor shall
also be the Lessee's responsibility, Lessor has the right, to enter the premises and remove,any of
the improvements; or otherwise dispose of such improvements, and charge the cost of removal
and/or disposaf and restoration to the Lessee. Lessee shall also be responsible for ell collection
Commercialtupmerged Lands Lease No, B-soq
Attachment A
Page 4 of 7
ATTACHMENT
costs including, but not limited to, legal fees and interest.
12. 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.
13. Indemnlfication.
Lessee will indemnify, defend, and save harmless the Lessor, the State of Idaho, its officers, agents and
employees from and against any liability, claims, damages, debts, demands, losses, costs, expenses,
actions, obligations, judgrnents.for damages, or injury to persons or property including, but not limited to,
reasonable attorrieys' fees and costs caused by or arising. out of use or occupation of the leased premises
by' Lessee, or Lessee's agents, officers or employees or any person failure to comply with any applicable
state, federal, or local laws, statutes; rules, regulations or acts: This duty to indemnify, defend and save,
harmless shall encompass"any claims which include or allege negligence of Lessor, its agents, officers or
employees other than claims which arise solely out of negligence. on the part of.the Lessor, and this duty
"shall survive the termination or expiration of this lease,
14. 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, and et all reasonable times as
it.deems appropriate, all activities of the Lessee arising in the course of its operation under this lease.
Lessee must maintain its books, records, documents; and other evidence of accounting in accordance
With generally accepted accounting principles 5o as to properly reflect its business. At sole discretion of
the Lessor en audit of the Lessee's books or the supporting tax documents that has been filed with the
Internal Revenue Service or the State Sales, Tax.Report may be performed by a Certified Public
Accountant or agent of the Department of Lands. If .an audit of gross receiptt shows a discrepancy of
ten percent (10%) or more, any. additional rental owed, and the entire cost of the audit, shall be paid to
the Lessor within thirty 00) days of notice to Lessee, as provided herein, unless a written payment plan
detailing otherwise is approved by Lessor.
15. Reservations bv.Lessor.
The Lessor expressly. reserves and excepts the following rights from the lease:
A. All timber rights, rights foroil 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.
B. The right togrant easements over the leased site, providing said easements do not conflict in a material
way with the approved improvements installed and maintained_ or operated by the Lessee upon the
leased site.
C. The right to. require that chan9esare made to the sanitation or other facilities for the protection of public
health, safety o' preservation of the leased site.
D. The right to issue leases for exploration and development of oil, gas, geothermal and mineral resources
or any.other lease; so long es such other use does not materially interfere with the authorized use under
this lease.
E. To resenie, as its sole property, any and all water from any source arising ori.state land and to hoid the
water rights for any beneficial use that may develop_as a result of this lease.
F. Right of ingress,and egress over and across the herein described premises for itself and its assigns on
existing roads or suitable alternative roads" provided bythe Lessee.
Commercial Submerged Lands Lease.No. B-5007
Attachment A
Page 5 of 7
ATTACHMENT
16. Lessee's Default.
Lessee's breach of any of the terms of this lease is a default and is a basis for termination of the lease.
Lessor shall provide Lessee written notice of the breach or violation and, if applicable, the corrective action
required of Lessee. The notice shallspecify the reasonable time to make a correction or cure. the violation or
r
_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 termination
notice, provided; however, that the notice shall be provided to Le§see no later than thirty (30) calendar days
prior -to the effective date of such termination.
17. Notices.
Any notice _given in connection with the lease shall be given in writing and shallbe delivered either by hand
to the other party or by regular United States Mail, tq the other party at the other party's address `stated
:herein. Either partymay change its: address stated herein by giving notice of the change in accordance with
:this paragraph. Until changed by notice in writing, notice, demands and communications shall be addressed
as follows:
Lessor. Idaho Department of Lands Lessee: Mile. High Marina
Bureau of Surface and Mineral James Oprblick
Resources PO Box 70
300 North 6'" Street, Suite 103 McCall I1183638
Box 83720
Boise, ID 83720-0050
18. Waiver.
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 partial paymerit 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..
19. Attorneys' Fees and Costs.
In the event either party to this Lease shall institute.a lawsuit of anykind under this Lease.or action: is taken
by either party to obtain peiforniance of any kind under this Lease, 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 fees and fees of other experts, incurred therein,by the prevailing patty,
including all such costs and expenses incurred with respect to en appeal and such may be included in the
judgment entered in such action.
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 foreny statement;
representation or warranty made in connection herewith.
21: Miscellaneous.
A. Modification. The lease terms, excluding the rent adjustments; may modified 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.
C. Lessee's Non -Discrimination. Lessee shall not discriminate against any person because of race, creed,
religion; color; seX, national origin or disability.
Commercial Submerged Lands Lease No. B-5007
Attachment A
Page 6 of 7
ATTACHMENT 1
D. Paragraph Headings. The paragraph headings; titles, and captions deed in this lease are not to be
construed as interpretations of the text but are inserted for convenience and reference only.
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 anyagent of either party, by representations, promises; or
undertakings whatsoever betweenthe respective parties concerning 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 betinding upon the approved subleases, approved assignees and Lessee's heirs or
successors in interest.
H. Severability: lh 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 impel*.
Commercial Submerged Lands Lease No. B-5007
'Attachment A
Page 7 of .7
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ATTACHMENT 1
Mile High Marina LLC Lease Agreement
Fxhibit C
May 4, 2005
City of McCall
City Manager: Lindley Kirkpatrick &
Council Members
216 E. Park Street
McCall, ID 83638
Re: Mile High Marina Construction schedule of docks
Dear Mr. Kirkpatrick & Council Members,
The management at Mile High marina is committed to replacing the entire dock system with an
estimated total replacement value at $400,000.00.
Currently, we are under contract with Inland Marine Construction Inc, to replace the first phase
of three (3) stages by May 31, 2005.
Phase Two (2), is anticipated to be completed at the end of the 2005 season and the third phase is
scheduled for completion by Memorial Day weekend 2006.
Please refer to the attached schedule for more details.
Regards,
James G. Gerblick
slj
ATTACHMENT 1
Phase One (1):
Estimated Date of Completion:
Phase Two (2):
Estimated Date of Completion:
Phase Three (3):
Estimated Date of Completion:
SCHEDULE A
Mile High Marina, LLC
Dock construction time -line
May 4, 2005
May 31, 2005
October 31, 2005
May 31, 2006
Mile High Marina LLC 1 Page Agreement
Exhibit C