HomeMy WebLinkAboutLEASE AGREEMENT & VISUALS & EMAIL - 14-00323 - 328 N 2nd E - Mountain America Credit Union - Onsite Modular Bldg/ 1_t0323
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CROI'ND LEASE AGREEMENT
TI-[S GROIJND LEASE AGREEMENT (this "Lease") is rnade by and between David
P*.t, as Trustee(s) of the BAKER D 2002 TRUST, with an address ot20OZ W Hwy 152, Dos
Palos, CA 93620 ("Landlord'), and MOLINTAIN AMERICA FEDERAI CREDIT t NIdN, a
Utatr non-profil corporatiorL with an address of 7181 South Campus View Drivc, West Jordan,Utah 84084 ("Tenanf'), as of the date both parties have signed thiJlease (the,.Eftrective Date").
Recitals.
WHEREAS, Landlord is the record owner of certain reai property and improvemems
located at approximately 328 North 2nd East, Rexbwg, Idaho 8344b and identified as Property
Tut IDNo. RPRRXBI0023850 (the "Property");
WI{EREAS, Landlord desires to lease a certain portion of tbe Property consisting ofapproximately 0.69 ases located atong 2nd Ea* in Rexburg, Idaho (the "Land")io Tenant u]onthe terms and conditions set forth in this Lcase; and
WHEREAS, Tenant desires to lease the Land from landlord for the construction andoperation of a temporary credit union branch on the Land upon the terrri and conditions set forth
in this Lease.
Agreement
' NOW, THEREFORE, in consideration of the muhral agreements contained herein, andother valuablc consideration the receipt and sufficiency of wtricn is hereby acknowledged,
Landlord and Tenant intending to be legally bound do hereby agree as follows:
l. Recitalc. The recitals set forth above are truo and correct and the same areincolporated herein by this reference as if ftlly set forth he,rein.
2. Land. The Land consists of approximately 0.69 acres or 2g,85l.66square feet
9d th9 Land is depicted on the map attached hereto as Exhibit "A", which is made a part of thisLease by this reference. The approximate dimensions of the Land are ghorvn onExhibit'.A".
3. Inspection Period. Tenant shall have rurtil 5:00 p.rn. Mountaiu Tirne ou Friday,June 6, 2014 (the o'Inspection Deadline') to inspect, test, investigate, and evaluate the tand (aiTenant's sols cost and expense), Landlord hereby gants Tenant acce$s to the Property, from tireEffective Date to ttre expirarion of the Inspectibn-Deadline, at reasonable hours for Tenant toconduot or cause its agents, consultants, contractors, or employees to conduct 6y and allinspeotio_ns, tests, studies, reviews, and investigations related to the condition of the tan4 whichTenant deems necessary or desirable to conduct on the Land (the "Inspoctions'). Tanant agteesto indemnifr Landlord against any damage to the Iand or the hopenty caused by my oitttInspections. Prior to the expiiation of 0re Inslrction Deadline, Tenant stAt aetenrritr" wb.dre.the Inspections and thc following items are acceptable to Tenanfi (a) the zoning of the Land, (b)the construction requirements and building pemrit requirements for the "Temporary Structlrres',,
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as defined in Section 8 below, (c) the reports from engineers, geologists, hydrologists,environmental consultants, and any other professionals selectJd by Tenant, (O tn" condition oftitle to the Property, (e) a swvey of the tant ana the hoperty, and (D the economic feasibility ofTenant leasing the Land. Landlord shall cooperate with Tenant in obtaining all necessaq, ,oningvariances or approvals for Tenant's intended development and use of the fanO. Tenant shall havethe opportunity prior to the expiration of the Inspection Deadline. to determine the quality, narure,and adequacy of the condition of the Land,lncluding but not limited to sewage lr utilityc.omponents and systems, water, trccess, visibitity, the presence of any hazardous materialsthereon, the development potential economio feasibility, habitability, merohantabitity, fltress,suitability, or adequacy of the Land for any particular ule, compliance or non-compliance withall applicable ordiffnces, codcs, laws, restrictions, regulations, agreemenls, covenants,conditions, reshictions, licenses, pennits, approvals, una applications of or rvitl anygovemmental authority asserting jruisdiotion over the Land, including but not limited to thoseqelating to loning building, public works, and hazardous materials. Prior to rhe expiration of rhelnspection Deadlinq Tenant may terminate this Lease for any rcason by providing written notice
to Landlord that Tenant haq dctermine not to lease the Land frorn Landlord" In ttte evcnt Tenam
{oes not give such termination notice to Iandlord prior to the expiration of the InspectionDeadline Tenant shall be dsemed to have waived all the conditions prccedent to Tenant,s
obligation to lease the Land and Tenant shall be bound by atl the remaining temrs and conditionsofthis Lease.
4- Lease, Rent, Term, & Commencement llate. Landlord hereby liases the Landto Tenant and Tenant herebyleases th Land from Landlord atthc rcnalrarc oitnree Thousand
and 00/l0O Dollars ($f,OO9lper lonth (the "Rent') for.a twelve (12) month tenn (thc "Ierm,)commenciug on July l,20L4 (ttrc "Commmcement Date'), subject to the other terms andconditions contained in this Leasc. Tenant shall pay the Rent to Landlord beginning on theCommencement Date. The Rent is due on the first (l) day of each month ofthe Tenn.
5. Latc Fee. Tenant hereby acknowledges that late payrnent by Tenant to Landlordof the Rent will cause Lmdlord to incur costs not contemplated bythis Lease, the exact amountof which will be exhemely difficult to ascertain. Such costs include processing ond accountingclarges and lale charges that may be irnposed on Landlord by the terms ofany Jthe, "gre"-cnts,:"hi9! qay rlvole th9.Land. Accordingly, if any installment of the Rent is not rJceived by'Landlord u'ithin five (5) days after Tenant's receipt of written notice ftorn Landlord of suchdelinquency, Tenant shall pay to Landlord a late charge equal to five percent (5Zo) of suchoverdue amollnt, The parties horeby agree that sucb late-chrtge ruprus.nts a fair and reasonableestimate of dre oosts Landlord will incur by reason of late payment'by Tenant. ,
6. Intcrest on Ilelinquent Paymente. Any sum due and payable by Tenant toLandlord under the terrns of ttris Lease, which is not paid ivhen dug shall 6ear interest at the rateof twelve lercent (12%) p€r alroum from the date lvhen ths same becomes drc and payable bythe provisions hereofuntil paid.
7- Permittcd Uses. The Land shalt be used by Tenant for the operation of atemporary retail credit union branch facility arrd any other lariuful business p.gposel Tenant shall
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use the Land in such a way as not to: create a nuisance, cause wastg on the Land, or cause thecancellation of any insurance policy held by Landlord covering the Land or the property.
8' Tempo-rary Structures. Landlord $alts Tenant and Tenant's agents andc,ontractors the right {*iry the Temr to construct and install a temporary building structure onthe Land and any and atl other structures or improvenents that Tenant deems nJcessary to beconstructed on. the Land for the operation of Tenant's credit union branch on the Land (the"Temporary Stnrotures'), at Tenant's sole cost and expense. Tenant strall be respolsible:forremoving the Temporary Sbuofures from the Land, at Tenant's sole cost ana expeix", ui ii"expiration of the Term. Landlord will not own and shall not be desmed to o*o ;i;i,h;Temporary Shuctures or improvemenB placed on the Land by Tenant. tenant shall rerainownership of all the lgtpot*y Sbuctrucs and improvements insiaUea on the lard by Tenant atall times during the Term of this Lease. The Temporary Structures shall be constructed inaccotdance with all local lats. Tenant shall not be requi:sdto submit any designs oi pt*t of theTemp'orary Snuchrres to Landlord for prior upptoual. Tenanr may begin "J*tuotion of theTemporary Structures at any time after the EffJctive Dat€ of this'teasi and after Tenanthasobtained all the necessar)r approvals fiom all governmentai agencies and authorities havingjurisdiction with reqpcct to the Land. Upon completion of constnrction of the Tempolar! .,1Shucft[es, Tcnant may install all such equipment, trade fixtures, e:<terior and interior rignilandscaping and other alterations or improvements in or about the knd and the TempoiaryStructues as Tenant may desire and as may be reasonably nec€ssaqr to operate a credit unionbranch on the Land- Tenant may make any alterations or improv"-*m to the Te,nrporarySjrucfures during the Term without Landlord's prior r,vritten c,ors€nt or approval, so long as zuchalteratiors and improvements are compliant witn bcal building codes and appiiroftrl"*n.
9, Easements & Access Landlord hereby grants Tenant and its officers, d.irectors,employees, invitees, licensees, gucstso conbactors, successors, and assigns any and all easernentsn€cessary for Tenant to construct and operate its business on the tana linctu6ng *i6tonilimitation easemenB for utilities, sanitary sewer, storm drainage, water aeteniioq ;csss to andfrom the Land for ingress and egress over and aoross the Froperty, signagg
'parking,
slopeadjustment, grading) during the Term. Landlord hereby grants a non-exclusG ao.r, eas€menr ,
to Tenant and its officers, directors, employees, iolrit"*s, licensees, gourrt,
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luc!1ssory' 11d assigns ovEr and across the Property for access to the Land ilth o""uo points on
]nd Ealt in Rexbug, Idaho. All the easements contained in this Section 9 and elsewhere in thisLease shall automatically terminate upon tle expiration of the Term or the earlier termination ofthis Lease.
10. AS.IS Condition. Landlord is leasing the Land to Tenant in its ..AS IS,,condition at its cunent grade, free of all debris, but otherwise in its present condition and withoutany repres€ntation or warranty from Landlord concetning the fitness of the Land for Tenant,sraliculat^b-usiness purposes and without any represontation or wananty regarding the currentzoning of the Land. Tenant hereby aflinns rhat Tenant shall have rne oppoitunitiprio, to theIospection Deadline to inspect the Land and determine whether it is fit ior fenaor's particularpurp-os€. Tenant aclcnowledges and represents that Tenant accepts the Land in its -oAS
IS'lcondition,
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lf.. No Option tc Extend Torm. Tcnturt shall not have any option or right to extend
the Terrn olthis Lease beyond the twelve (12) month Term.
t2. No Right of Firrt RefusaL Tenant shall not have any right of first refusal to
purchase the Land or any portion of the Property from Landlord-
13. No Security Deposit. Tenant shall not be required to give any security deposit to
Landlord in connection with this Leasc.
14. Lanillord'e Taxes, fnsurancer'& Association Dues. I-andlord shall pay all real
pKlpeny taxss, assessments, association dueq and insurance related to the Land and the P5operty.
Tenant shall have no obligation to pay any of the real property ta(es, .tssessments, association
dues, or insruance premiums relaled to the Iand or the Property.
15. Tenant's Penconnl Propcrty Texes. Tenant shall pay any porsonal ptoperty
taxes assessed against any personal property, equipment or ffide fixnues of Tenant that are kept
on the Land.
16. Slgnage. Tenant shall have the right to place signs in, on, or about the Land and
fte Tpmporary Structurcs in accordance with all Recburg City laws and ordinances and all other
applicabte state and federal laws related to signs. All such signage shall be installed at Tenant's
sole cost and expense. At the expiration of the Ternr or earlier termination of this Lease, Tenant
shall (subject to Section 22 below) rernove such signage and rcstore tbe Land to its original pre-
lease condition. Landlord sball not be required to approve the contents, naterials, design, or
speoifioations of my of Tcnmt's signs to be located on the Land. Tenant shall have no obligation
to install any signage on the.Land.
17, Parking. Landlord hereby authorizes Tenrant and its officers, directors,
employecs, invitees, licersees, guests, contractors, succesgonr! and assigns to park on the l-and
and to use the access easement granfed to Tenant in Section 9 above for vehicular q'd pedestrian
access to the Land and the Temporary Structures in connection with Tenant's business. Landlord
also hereby authorizes T€4ant to paint parking lines, traffic flow lines, and any other lines,
symbols, or text neoessaxy for Tenant to comply wilh all local law concerning the Land and
Tenant's use thereof. Tenant shall not ba required to submit any parking conliguration plans to
Landlord prior to improving the parking areas on the Land, but Tenant shall comply with all
local, state, and federal laws conceming the parking oh the Land. Tenant shall have no obligation
to make any parking improvemcnts on tbc Land and any such impovements madc by Tenant
shall be at Tenant's sole cost and expense
18. Sitc Modifications. Tcnant may at its option, modifl the slope and grade of the
Land (at Tenant's sole cost and expensa), inoluding repaving or resurfacing anrn parking or
access areas on ths Land Tenant desires to complete. Tenant shall have no obligation to complete
any sitc modifications. All such sile modifications shall be in Tenant's sole discr€tion and shall
be in compliancs rvith all local law.
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f 9. Trade Fixturen, Pcrsonel Propcrty & EquipmenL Tenant may place or install
in the Tomporary Struchrres such tradc fixturos and equipnent as it deems dcsirabie for the
conduct of its business therein. Personal property, fixtures, and equipment used in 0re conduot of
Tenant's business ptaced by Tenant on the Land or in the Temporary Shuctures shall not become
a part of the rdry, even if nailed, sorewed, or otherwise fastoned to the Temporary Stuctures or
the [and, but stall retain their status as personal property and may be removed by Tenant at any
time.
20. Tenantts Maintenancc, Rcpalr, & Insurancc. Tenant, at its expense, shall keop
the Temporary Structures in good condition and repair at all times during the Term. Tenant shall
procult cariualty insurance insuring the Temporary Structues from darnage in suoh amounts as
Tenant deems sufficieirt. t^andlord shall have no obligation to maintain or repair tbe Temporary
Stnrotures or insrue the femporary Shrctues against loss. Tenant agrces to lls€ reasonable
efforts to keep the Land free of trash and other debris and notpermit any waste to occur on the
Land.
2l- Tenantts Utillty Chargcs. Tenant shall pay all cbarges for elecuicity, watern gas,
sanitary sewer, telephone, intemet hash renoval, and any and all othor utility scrvices firrnished
to the Land or the Temporary Stnrctures druing the Tetm. If any utility services are not
separatsly metered and charged directly to Tenant, but are netered jointly with other portions of
the Property or other parcels, Tcnant shall pay a pro-rata sharc of all such utilrty chargcs, bascd
upon Tenant's usage of such rrtilitv services, as shall be equitably determined by the parties.
Landlord shall not be obligated to pay any ilitity costs or expenses associated with Tenant's use
of the Land
22. Restore the Land. Upon the expiration of the Term or upon the early
termination of this Lease, Tenant shall bc required (at Tenant's sole cost an6 ospense) to rernove
the Temporary Stnrctwes and Tenant's pennnal property from the Land and restore the Land to
its original prc-lease condition (ordinary wear and t€ar exceptcd), except for any improvemcnts
rnade by Tenant that Landlord desires to remain in their current condition (if any) shall be
permitted.to rcmain on tbe t and, Notwithstanding the foregoing, Tenant shall be permined to
remov€ the Temporaqy Strrctures dmd any and all of Tenant's personal property, equipmen!
signage, and Eade fixtures ftom the Land at the expiration of the Term or earlier termination of
this Leas€, including any improvernents rnade to the Land that Tenant desires to remove from the
Land. Accordingly, fenant agpe$ to surender the Land in good condition and repair free of
debris and waste in as close to pre-lease condition as possible, with allowance being made for
ordinary wear and tear and damages frorn natural causes.
23. Indemnifisation by Tenant Tenant shall .indemnif, defend, protect, and hold
Landiorrd harmless from and against any and all liability, damage, loss, cost, expense (including
Landlord's reasonable attorney fees), causes of action, suits, clains, or judgments resulting ftom
r4i,rty or death to pcrson, or damage, dcterioration, or loss to property occuning on the Land or
the Temporary Sfuuctures if causcd by the aot or omission of Tenant orthe act or omission of
T€,nant's officers, directon, employees, agents, invitees, licenses, or guosts.
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24. Indemnification by Landtord. Landlord shall indemnify, defend, protect, and
hold Tenant hannless from and against any and all liability, damage, loss, cost, expense(including Jslnnt's rcasonable attorney fees), causes of action, suits, claims, or judgments
resulting from injury or death to person, or damage, deterioration, or loss to property occurring
on the Land or the Temporary Stuctures if caused by the act or ornission of Landlord or the act
or omission of Landlord's trustees, employees; agenls, invitees,licenses, or guests.
25. Mechtnlc's Liens. Tenant shall not perrnit any mechanic's, rnateriahnen's, or
other liens to stand against ths Land for work or materials finnished in connection with the
construction of the Ternporar,v Struc.tures or the installation of the trade fixtures and equipment
or the installation of signage and parking areas on the Land or ury other alteraiions or
improvements completed by Tenant on the Land: Tenant agrees to indemnifi and defend
Landlord against any claim of lien related to Te.nant's construction activities or use of the Land
during the Teryn.
26. Condemnation. If any portion of the Land shall be taken by condemnation or
eminent domain such that the Land is no longcr usable for Tenantts business pu{pos€s, in the
reasonable opinion of Tenant, or, if mch condernnation or taking prcvents fenant from havingirlggss and egress accass to and from the Land ftom the existing accqss poinrs on 2nd Ead i;
Rexburg, Idaho, then Tenant shall have the option to terminate this Lease-'by delivering written
notice of such election within sixfy (60) days of the date of &e vesting of title in thc bkine
entity. In the event Tenant fails to deliver such writen notice within said sixty day' period,
Tenant shall be decmed to hare waivod its right to terminate this Lease for coademnationpu{Poses.
27. Loss. If aoy portion of the Land shall be destroyed by fire, earthquake, tornado,
or other force ofnaturc, sucl ihat the Land is no longer usable for Tenant's business purposes, in
the reasonablo oplnion of Tenan! or, if such destnrotion or act of natme prevents ingress and
egress to and from the Land from the existing acce$ points on 2nd East in Rexburg; Idaho, thenTenant shall have the option to terminate this Lease by delivering ranitten notice ofluch election
within sixty (60) days of lhe destuctive event In the event Tenant fails to deliver such writtennotice within said sixty day period, Tenanl shall be deemed to have waived its right to terminate
this Lease.
28, Tenantts Default Tenant shatl be in default hcreunder in the event of any of
the following: (a) Tenant fails to make any payment of the Rcnt when due, end such failrae
continues for at least ten (10) days after written notice thereof i3 given by Landlord to.Tenant;
(b) Tcnant fails to perform any other obligation to be performed by Tenant hereruider and suohfailure continues for thirly (30) days after written noticc thereof is given by Landlord to Tenant;or (c) Tenant abandons and vacates the Land prior to the expiration or termination of the Term.Notwiftstanding the foregoing, Tenant shall not be deemed in dsfault hercunder in the event the
hature of Tenant's allcged dofault is such that more than thirty (30) days are required for its cure,
so long as Tenant has undertaken to cure the default within such thirty day period and, thoreafter,
diligently prosecutes the same to completion in less than ninety (90) days from the date of
default.
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29.Landlord's Default Landlord shall be in defarilt hereunder in tlre event of any
of thg following: (a) Landlord fails to provide possession of thc Land to Tcnant during the Term;
(b) Landlord Ain io provide quiet enjoyment of the tand to Tenant during the Term; 9r (o)
i,aoatorA fails to perfonn any oithe obiigations to be performed by Landtord hereunder and such
faitue shall continue for thirry (30) days after written notice tlereof is given to Landlord by
Tenant; Notwithstanding the foregoing, Landlord shall not be deemned in default hereunder in the
event the nature of Landlord's alleged default is suoh that more than thirty (30) days are required
for its crue so long as Landlord has undertaken to cure the default within such thirty day period
and, thereafter, diiigently prosecutes the sarne to corrpletion in less tlran ninety (90) days from
the date of default.
30. Remodios upon Tcnant's Default. Upon the occurrence of any of thc events of
default of Tenant described in Seotion 28 above, Landlord, at its option, rnay: (i) cure such
default on behalf of Tenant; or (ii) canoel and terminste this Lease upon rvritten notioe to Tcnant,
thereby terminating Tenant's rightto posscssion of the Land as of the termination date contained
in rhe notice. If Landlord elects to cure a default ofTenant, then Tenant shalt reimbune Landlord
for all €xpenscs incuned by Iandlord in curing such default within fifteen (15) days after reoeipt
from Landlord of an invoice for the same.
31. Remedier upon Landlord's Default Upon the occrurence of any of the events
of default of Landlord described in Sestion 29 above, Tenant, at its optiorg may: (i) cure such
default on behalf of Landlord; or (ii) cancel and terminate this hase upon written,notice to
Landlord, thercby lerminating Landlord's right to any hdditional Rent after the termination date
contained in the notice. If Tenant elects to cure a default of Landlord, then Landlord shall
reimbwse Tenant for alt exp€nses incuned by Tenant in curing such default within fiftecn (15)
days after recetpt ftom Landlord of an invoice for the same-
32. Noticec. Any noticE domand, or.other communication permitted or required to be
given he,regnder shall be in writing and may be given by personal delivery, by certified United
States mail (return receipt requested), or by email, addressed as follows:
If to Landlord : Baker D Trust 20OZ ^ DbAttrr: -David Baker D n. fo.L|'
ffi'Etflo,uls3l7
Email : bakerfarming@earthlinkhet
If to Tenanj: NlountainAmerica Federal Credit Union
rvith a copy to:
Atfir: Stevc Call
7181 South Campus View Drive
West Jordan, Utah 8408+
Email: stcall@masu.com
Nick Andersorq Esq.
Legacy Law' PLLC
2363 North Hill Field Road
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Suite 112
. Layton, Utah 84041
Email: nick@legacylawfi rm.net.
The person ad place to which all such notices, demands, or other communications are sent may
be changed from time to time by either party by written notice given to the other party. Nolices
s€nt by ernail shall be deemed given when sent. Notices sent by certified mail shall be deemed
given two (2) days after deposit in United $tates mail. Notices sent by personal delivery shall be
deEmcd given rvhen delivered to therecipient's address.
33. Brokerrgc Comniqsion. Landlord hereby agrees to pay Tenant's rcal estate
broker, Ivlountain West Retail-Investmeng a brokerage commission in an arnount equal to One
Thousand SevenHundred Fifty,and 00/100 Dollars ($1,750) on the Comnence,nent Date of this
Lease, as defined in Section 4 above.
34. Asrignmenl and Subletting Teuant may assign its interest in this Lease or
sublease its interest in the Land without landlord's priot consent. If Tenant assigns or subleases
the Land, Tenant shall noti$ Landlod in writing of any such assignment or sublease within
thirry (30) days of the consummation of any such assignment or sublease and Tenant slrall
nevertheless rcmain liable to Landlord for full payment of the Rent and full perfomrance of
Tenant's other obligarions under this Leaso.
35. Hazardous Meterirls. Landlord represents to Tenant that Landtord has no
reasonable cause to belicve that any hazardous materials (or underground storage tanls) are
losated on, abou! under, or in the Land and Landlo:d hereby agrecs to promptly notiff Tenmt of
the discovery of the same. fire parties shall not cause or permit hazardous materials to be
brought upon, kept or used il, on, or about the Land.
3C Hold Over Tenency. If Tenant, with Landlord's consen! remains in possession of
the Land after the expiration of the Tern, such possession by Tenant shall be deemed to be a
month-to-month holdover tenancy tenninable on thirty (30) days' prior vnitten notice given 4t
any time by eitherparty. During such month-to-month holdover tenancy, Tcnant shall pay Rent
at one hundred fifty percent (150%) of the Rent defined in Section 4 above. All other provisions
of this Lease shall apply to the month-to-rnonth holdover tenancy.
31. Quiel Enjoyment So long as Tenant is not in default hereunder, Landlord shatl
etrsur€ Tenant's quiet and peace,fut possession of the Land- Landlord's failure to provide Tenant
with quiet enjoyment or possession of the Land during the Term shall be an act of default by
Landlord hereunder.
38. Landlord's Right of Enlry. Landlord and its authorized representatives shall
have the right to enter upon ths L^and at reasonable intervals and at all reasonable times upon
reasonable notice for any of the fotlowing purposes: (a) to determine whether the Land is in a
state of good condition and repair and whether Tenant is complying with its obligations under
this Leasc; (b) to post a *For Sale" sign on the Land at any time during the Ter.m; ard (c) to show
the Land to prospective ptrchasers, brokers, agents at any time during the Tenn,
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39. Waivers. No delay or omission in the exercise of any right or remedy of any parlyhetet'ndor wi-th respect to any default by any party shall be construed ai a waivcr. nny wa$r Uyany paxty of any default must be in uriting and shall not be a waiver of any other defauitconcerning the same or any other provision ofthis Lease.
40. Transfer of Landlord's Interest If Landlord conveys. in a sale, exchange, orotherwise, all its interest in this Lease or in the Lan4 which is the subject of this teas{ thenLandldrd, upon consummation of the conveyance, shalt tlrereupon
-be
released from any
9btie3tig131 liability- thereafter accruing under this Lcase (after the date of such assignment ortransfed if Landlord's successor assumes in writing Lan&qr6', obligations undc,r tliis Leaseaccruing ftom and after the date of such assignment oi trnsfet If any security deposit or prqpaidRent has been paid by Tenant, Landlord may tansfer such security.deposit or prepaid Rent toLandlords sucgessog and on such transfer, Landlord shall be disctrargeA tom^any furrherliability in connection with such security deposit or prepaid Rent, but iandlord shall remaingbliq,ate{ for any defaults or unfulfilled obligations of ianatord ihat pre-date the rransfer ofLandlord's intersst in the Iand.
4I. Subordinatioa. If any future mortgagee or beneficiary so elects in writing, then,so long as such mortgagee or beneficiary executls-a non-disturban; agrcement in form andcontent reasonably satisfactory to Tonant, this Lease sball be subject and iubordinate to the lien
9f the mortgage or deed of trust held by such urortgagec or bencficiary, whether this Loase isdated before or after zuch mortgage or hust deed. Upon request, Tenuni rh"[ promptly execgteanl deliver to tandlord, br any such mortgagee or
-beneficiary,
arry documents or instnunentsrequired by uny of thern to evidence the subordination ofthis Liase hereundcr.
42. Attornment by TcnanL Upon enforcement of any rights or rcmedies under anymortgagc or desd of ru$ to which this lrase is subordinared (inciuding proceedings for judiciatforeclosure or a tustee's sale purzuant to a power of sale, or deed in lieu of forectos-rrre delivercdby Landlord to the mortgagee or beneficiary therermder), Tenaat shall, at the election of thepwchaser or transferee under such riglrt or remedy, attom to, and recognize such purchaser ortrarnferee as Tenant's landlord under this Lease, Tenant shall executc aod deliuer roy dq.I*,"otor instrument required by such purchaser or transferee qonfirming the attornment hsreundor andsuch purchaser or transforee shall sxecute and assignment and asiumption of this. Leass with aneffective dale as of the date suoh pruchaser or tansferee takes title to tile Land.
43- Time of Essence. Time is of the essence with respect to thq perforrrance of everyprovision of this Lease in which a time of performance is specified.
. 44. Estoppel Certilicates. Tenant and Landlord shall, within twcnty (20) days aflernotice from the gttrer party, execute and deliver a statement in writing oerti8rG: ia) tlat ttrisLease is unmodified and in full force and efifect (or, if modifidi iOentiryiig'each suchmodification and ccrtifing tbat this Lease, as so modifie4 is in firll force and efiect); (b) thedate to whish tho monthly Rent has bcen paid in advance, if at all, and the arnount of anysecurity deposit (c) the courmencement and expiration dates of the Term; (-d) that therc are nooprions to extend or renew the Term or to purchase the Land which such p'aty claims (except as
Dh A.-
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may be idontified by such party); and (e) that there are not, to the knowledge of the party
providing such certificate, any uncured defaults bn the part of the other party hercrurder (or
spccrfying suchdefaults, OTt, as are claimed). .
45. Attorneyo' X'ees. If either party hereto brings an action at law or in equity to
enforce, interpret, or seek redress for the breach of this Lease, then the prevailing party in such
action shall be entitled to recover all costs (including court costs), expenses, and reasonable
attorneysn fees associated with such action, in addition to all other appropriate relief.
46. Party and Pgrties. The temr "party'' shall mean l,andlord or Tenant. The term
"parties'sball mean tandlord md Tenant.
47. Scverebility. The invalidity, illegality, or unenforceability of an provision of this
Lease shall not rendet any other provisions of this Lease invali4 illegal, or unenforceable.
48. Gbverning Law. This leasc shall in all rcspects be constnre{ interpreted, and
governed in accordance with the laws of 0re Srate of Idaho
\49. Succcsgors and Assigns. All provisions, terms, oovenants, and.conditions of this
Leasc shall be binding upon and inure to tlre benefit of fte partios and their reqpective heirs,
executo$, administators, officers, directors, suscessots, and assigns, including any assignee,
sublessee, or tansferee ofthe parties.
50. Construclion and luterpreiation. The use of "including" or words of similar
import when follorving any statement shall not be construed to limit zuoh staternent to the
specific itcms rnentioned, whether or not language of non-limitation such as *without limitation"
or "but not limited to" is used with refereircc thereto, but rather shall be deemed to refer to all
otlrer items that muld reasonably fall within the broadest possible scope of such statsment
51. No Palty Authorrhip. All provisions of this Lease have been negotiated by
Landlord and Tenant at arm's length and neithsr party shall be dcemed tbe scrivener of this
Lease- This Lease shall not be corskued for or against eitber party by reason of the authorship or
alleged authorship ofany provision hereofor by reason ofthe status ofthe respective parties 4s
Landlord or Tenant.
52. Entire Agreement & Modificltion. This Lease contains all of {re
representations, undorstandings, and agreements'of the parties with respect b the Land and use
of the Land by Tenant and rnay not be amended or modified except by a written agreemenr
signed by both parties.
53. Effecaive upon Execution. It is understood and agreed that until this Lease is
fully executed and delivered by both Tenant and Landlord, therc is not and shall not be an
agreement of any kind between the parties hereto upon which any cornnritment, undertaking or
obligation can be founded.
10 ww
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54- Hoadings. The section headings of this Lease are insertEd only for convenience ofreference and in no way define, limi! or describe the scope or intent of this Lease or affect its
terms or provisions.
55- Survivel of Defaults & Obligations. The expiration or sooner termination of this
Lease shall not impair or othenvise affect any right or remedy available to either party hereunder
lvith respec!to any default by the other pary which remains uncured as of the date oiexpirationor termination of this Lease. All liabilities, indemlities, and unperfonned obligations andcovenants existing prior to the expiration or sooner termination of this Leasc shafllurvive thecxpiration or tennination of this Lease and shall remain enforceable by the other party.
56. Force Maieure. The occurrence of any of the following events ihaii excuse theperformance of such obligations of Landlord or Tenant as.are thereby rendered impossible or not
reasonably practicable for so lonj as such event continues: shikes; lookouts; laboi disputes; acts
of O-o4 inability to obtain labor, material$, or reasonable substitutes therefore; govemmental
restrictiols, regulations, or controls; judicial orders; €nemy, or hostile go.v"*-"oi action; civilcommotion; fire or other casualty; and other causes beyond te reasonable control of the party
obligated to perforrn; provided, however, that in no event will tbe occunence of any of oii
€vents or causes excuse the failure to pay thc Rent strictly as and when required under this lease.
57. Authority. Each party hereby warrants to the other that the execution of this
Lease by such party and the performance of all of ttre obligations to be performed by such party
hereunder have been duly authorized by all nccessary organizational, corporater-and trustceac-tionr Each partv firrther warrants to the other that each individual signing this Lease on behalfof suchparty has been firlly authorized and empcwered to do so by suclp*.y*
58. No Joint Venture or Partnership. Nothing contained in this Lease shall bedeemed or conshued by-the parties or by imy third lerson to Leate tft" ,"f"tio"rrup of prinoip"tand ageng or of pattnershi.p, joint venture, ffi any associntion between Landlord and-Tenant
59. Prior Agreementr. This tease superscdes and replaces all prior lettcrs of intent,agreements, and understandings of the parties with respect to the subject matter of this l-ease,
whether witten or oral.
60. Counterparts & Copier. This Lease rnay be executed.in oounterparts and thecounterparts taken together shall constitute a compldte originat. Copies of this Lease (full;'
executed by the parties), whether seDt by email, fax, mail, or othenrise,and rvhether in electronit
or paper format shnll have the same effect as an original of this Lease.
61. Exclusive Use. Landlord hereby grants Tenant the right to exclusive possession
gf the Land during the Tetm. Landlord shall not permit any individual, business, or entity (other
tfan Jenant) to possess or use any portion of the Land druing the Term. The parties aoknowld,gethat l,andlord has historically leased porlions of the Land to certain indivi&rals and busincssis
for temporary business activities, including food concesions (the "Temporary Vendors').Landlord hereby agrees not to lease any portion of the Land during the Terrr to any former ornew Temporary Vendor and Landlord hereby agrees to rernove any such Temporary Vendor
from the Land upon witten request from Tenant. In the event any Temporary Vendor is located
11 $h s*
p.12
o1.1h3.Proqerty adjacent land to the Land,.such Temporary Vendor's use shall not obstruct thevisibility of the Temporary Sbuctures, the businesr uoiiritiis of Tenant on the Land, or Tenant'saccess to the Land and the Temporary Str:uctr:res.
62. No Cross-Acccss by Temporary Vendors. Landlord hereby gantq Tenant theright during the Term to unobstructed access to the Land with acce$s for in$ess and egress toand tom 2nd East in Rexburg ldaho. Landlord warrants to Tenant that no tr*porur.r Vendorthat occupies any of the adjacent Property shall harre any right to cross the Land aufng-the termto access the Temporary Vondor's teascd portion of the eioperty or to uie any of tire parkingareas located on the Land. Landlord hereby agrees to ensurethat thc torms and conditions of thisfection 62 ate complied with and to take such steps as are reasonably necessary to protectTsnart's access and exclusive use ofttre Land during the Tenm.
IMHEREAS, Landlord and Tenant have executed this Ground Lease Agreement as of theEffeotive Date deJined above.
LAIIDLORD:
BAKERD 2OO2
By:
TENAIITT:
Facilities
Name: Steve Call
Its: Vice President of Corporate Real Estate &
Exhibit ftAt'
(Map of the Land)
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