HomeMy WebLinkAboutCity of Rexburg New Proposed Contract from DWI in March 2023
City of Rexburg
Lease
This Real Estate Lease (this “Lease”), effective January 1st, 2023 (the “Effective Date”), is made by and between Development Workshop, Inc., an Idaho non-profit corporation (“Lessor”),
and City of Rexburg, a municipality (“Lessee”). Lessor and Lessee are each a “Party” and together the “Parties”.<
In consideration of the mutual promises and covenants contained herein, the Parties agree to the following terms and provisions:
Real Estate. Lessor hereby rents to Lessee, and Lessee hereby rents from Lessor, the real property, including fixtures and appurtenances, described in Exhibit A (hereinafter collectively
referred to as the “Real Estate”), which is attached hereto and which is incorporated herein by this reference, subject to the terms and conditions contained herein.
Rent. Lessee shall pay to Lessor the sum of $____ $3680.27 _____ per month (the “Rent”), which shall be due on the first (1st) day of each month during the course of this Lease; provided,
that Rent for each Renewal Term shall automatically increase two percent (2%) over the Rent in effect for the most recent Initial Term or Renewal Term, as applicable. The rental for
the first and last month’s rent shall be prorated. Lessee shall pay such Rent at Lessor’s primary place of business, or at such other location as shall be directed by Lessor. All Rent
payments not paid within ten (10) days of the due date shall be subject to a one-time late payment penalty of 5% of the amount of the late Rent payment. After ten (10) days, the late
Rent payment shall also accrue interest at the rate of 18% per annum until the Rent payment is paid. <
Term. The initial term of this Lease shall commence on the Effective Date and shall continue for a term of twelve (12) months (the “Initial Term”). Upon expiration of the Initial Term,
this Lease shall be automatically renewed for additional one-year periods, unless terminated earlier by either party (each a “Renewal Term” and collectively with the Initial Term, the
“Term”) in accordance with Section 4. As of July 1, 2022, a change in contract was agreed upon regarding a lease term on a month-to-month basis.
Termination. This Lease may be terminated at any time: (a) by mutual agreement of Lessor and Lessee; (b) by Lessor in the event a breach of this Lease by Lessee has occurred and remains
uncured for fifteen (15) days after written notice by Lessor of such breach; (c) by Lessee in the event a breach of this Lease by Lessor has occurred and remains uncured for fifteen
(15) days after written notice by Lessee of such breach; and (d) by either Party for any reason or for no reason upon ninety (60) days’ written notice to the other party.
Gross Lease. This is intended to constitute a “Gross Lease,” and shall be interpreted in a manner consistent therewith. Consequently, Lessor shall be responsible for and shall pay
any and all costs and expenses associated with the Real Estate, unless otherwise specified to the contrary herein. <
Expenses. Lessor shall pay all taxes, assessments, ordinary and necessary maintenance and repair expenses, and other expenses related to the Real Estate that accrue during the Term
(as defined below) of this Lease; provided, that Lessee shall pay all expenses related to repairs resulting solely from Lessee’s gross negligence or willful misconduct.
Insurance. Lessor shall insure the Real Estate for full fair market of the improvements thereon at Lessor’s expense. Lessee shall be responsible for obtaining insurance coverage for
any personal property that Lessee maintains on the Real Estate, and Lessor shall not be liable for any loss of or damage to such personal property.
Maintenance. Lessee shall maintain the Real Estate in the same condition in which it has been delivered to Lessee, ordinary wear and tear excepted. <Lessee agrees to be responsible
for replacement of any and all components, fixtures, and appurtenances that break or are damaged solely resulting from Lessee’s negligence or willful misconduct. Notwithstanding the
foregoing, the Rent on any destroyed portion of the Real Estate shall proportionally abate during such replacement period. Lessor shall be responsible for snow removal.<
Representations and Warranties of Lessee. Lessee represents that Lessor has provided Lessee access and the opportunity to examine the Real Estate and that Lessee has examined the Real
Estate prior to the Effective Date. Lessee accepts the Real Estate on an “AS IS” basis on the Effective Date.
Environmental Laws.
“Environmental Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law
of any governmental authority: (i) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or
the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (ii) concerning the presence of, exposure to, or the management, manufacture, use,
containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Substances. The
term “Environmental Law” includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as
amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.
“Hazardous Substances” means: (i) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring
or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (ii) any petroleum or petroleum-derived products,
radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls.
Lessee shall not store or keep any Hazardous Substances or environmental contamination on the Real Estate as of the Effective Date outside of reasonable amounts of cleaning materials
and the like that is necessary for the operation of the Lessee’s business.
Lessee agrees to indemnify, defend, and save Lessor from all Claims (as defined below) with respect to third-party, governmental or governmental agency claims, resulting from the presence
of any Hazardous Substances on the Real Estate in violation of or not in compliance with any Environmental Law (i) caused by Lessee or its agents, contractors, employees, invitees, or
other tenants (past or present) of the Real Estate; (ii) present as of the Effective Date; (iii) any breach of Section 10(c); or (iv) identified by Lessor within sixty (60) days after
the Effective Date.
Alternations. Lessee shall not alter, expand, or change the Real Estate from its current condition without the prior written consent of Lessor.
Mechanics Liens. Lessee shall not make any contract or agreement, either oral or written, for any labor, services, fixtures, materials or supplies in connection with altering, repairing,
or improving the Real Estate without providing in the contract that the contractor waives all right to mechanic’s and materialmen’s liens, and agrees to indemnify Lessor against all
liability arising from any mechanic’s or materialmen’s lien of any subcontractor because of furnishing any labor, services and/or material. Lessee shall have the option of providing
appropriate bonding against mechanic’s or materialmen’s liens as compliance with this paragraph
Uses. Lessee shall use the Real Estate only for storing inventory, including processed and frozen foods. Lessee shall not use the Real Estate in any manner that would increase the cost
of any insurance or increase the risk of fire. Lessee will provide all labor and a forklift to manage inventory stored on the Real Estate.
Default. Time and prompt performance of each and every term, covenant, and condition of this Lease is material and of the essence of this Lease. Every term, covenant, and condition
is a material term, covenant, and condition of this Lease.
The following or any of them constitute an event of default by Lessee of the terms of this Lease:
Failure by Lessee to pay when due any installment of Rent or any other sum herein specified to be paid by Lessee, if the failure to pay the same is not cured within 10 days after written
notice has been given to Lessee;
Failure by Lessee to perform any other provision of this Lease required of Lessee, if the failure to perform the same is not cured within 30 days after written notice has been given
to Lessee;
If Lessee shall file or have filed against Lessee in any court pursuant to any statute, either in the United States or of any other state, a petition in bankruptcy or insolvency, or
for reorganizations, or for appointment of a receiver or trustee of all or a substantial portion of the property owned by Lessee, or if Lessee makes an assignment for the benefit of
creditors, or an execution or attachment shall be issued against Lessee on all or a substantial portion of Lessee's property, whereby all or any portion of the Real Estate covered by
this Lease or any improvements thereon shall be taken or occupied, or attempted to be taken or occupied by someone other than Lessee, except as may herein be otherwise expressly permitted,
and such adjudication, appointment, assignment, petition, execution or attachment shall not be set aside, vacated, discharged or bonded within 30 days after the termination, issuance,
or filing of the same; or
The taking by any person, except by Lessor or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity other than
by assignment or sublease as permitted herein.
Upon the occurrence of any event of default by Lessee, without further notice to Lessee, Lessor shall be entitled to effectuate such rights and remedies against Lessee as are available
to Lessor under the terms of this Lease and the laws of the State of Idaho, including, without limitation, the following remedies:
Lessor shall have the immediate right, but not the obligation, to terminate this Lease, and all rights of Lessee hereunder by giving Lessee written notice of Lessor’s election to terminate.
No act by Lessor other than giving written notice to Lessee shall terminate this Lease. In the event of such termination, Lessee agrees to immediately surrender possession of the Real
Estate. Should Lessor terminate this Lease, it may recover from Lessee all damages Lessor may incur by reason of Lessee’s breach, including but not limited to the cost of recovering
the Real Estate, reasonable attorneys’ fees, the worth at the time of such termination of Rent and other amounts then due and payable, and the worth at the time of such termination of
the excess, if any, of Rent and other amounts reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Real Estate and other amounts for
the remainder of the stated term, all of which amounts shall be immediately due and payable from Lessee to Lessor.
Lessor shall have the right, without terminating this Lease, at its option, with or without process of law, to reenter and retake possession of the Real Estate, and all improvements
thereon, and relet the whole or any part of the Real Estate for the account of Lessee, upon any terms or conditions determined by Lessor in its sole and absolute discretion, and/or collect
rents from any sublessee. Lessee shall be liable immediately to Lessor for all costs Lessor incurs in reletting the Real Estate, including without limitation, brokers’ commissions,
expenses of remodeling the Real Estate required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. In the event
of such reletting, Lessor shall have the right to collect any rents which may become payable under any sublease and apply the same first to the payment of expenses incurred by Lessor
in dispossessing Lessee and in reletting the Real Estate, and, thereafter, to the payment of the Rent herein required to be paid by Lessee, in fulfillment of Lessee's covenants hereunder;
and Lessee shall be liable to Lessor for the Rent herein required to be paid, less any amounts actually received by Lessor from a sublease, and after payment of expenses incurred, applied
on account of the Rent due hereunder. In the event of such election, Lessor shall not be deemed to have terminated this Lease by taking possession of and reletting the Real Estate unless
written notice of termination has been given by Lessor to Lessee.
Lessor shall also have the right, without process of law, to enter the Real Estate and remove all persons and property from the Real Estate without being deemed guilty of or liable in
trespass. No such action by Lessor shall be considered or construed to be a forcible entry. No such reentry or taking possession of the Real Estate by Lessor shall be construed as
an election on its part to terminate this Lease unless a written notice of such intention is given by Lessor to Lessee.
In addition to the other rights of Lessor herein provided, Lessor may, at any time and from time to time, without terminating this Lease, enforce all of its rights and remedies under
this Lease or allowed by law or equity, including the right to recover all Rent and other amounts as they become due.
The remedies provided in this Lease are cumulative in addition to any remedies now or later allowed by law or equity. The exercise of any remedy by Lessor shall not be exclusive of
the right to affect any other remedy, allowed Lessor under the terms of this Lease, or now or later allowed by law or equity.
Any delay by Lessor in enforcing the terms of this Lease or any considerations or departures therefrom shall not operate to waive or be deemed to be a waiver of any right to require
compliance that is full and to the letter of this Lease or to thereafter require performance by Lessee in strict accordance with the terms of this Lease. Any acceptance of Rent or other
payments by Lessor shall not operate to waiver or be deemed to be a waiver of any default existing at the time of such acceptance.
In the event that any remedy granted to Lessor under the terms of this Lease is held void or unenforceable, Lessor shall nevertheless have all of the other remedies provided in this
Lease that are not contrary to law.
Lessee hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Lessee being evicted or dispossessed for any cause, or
in the event of Lessor obtaining possession of the Real Estate by reason of the violation by Lessee of any of the covenants and conditions of this Lease or otherwise.
The following or any of them constitute an event of default by Lessor of the terms of this Lease:
Failure by Lessor to pay when due any sum herein specified to be paid by Lessor, if the failure to pay the same is not cured within 10 days after written notice has been given to Lessor;
Failure by Lessor to perform any other provision of this Lease required of Lessor, if the failure to perform the same is not cured within 30 days after written notice has been given
to Lessor;
If Lessor shall file or have filed against Lessor in any court pursuant to any statute, either in the United States or of any other state, a petition in bankruptcy or insolvency, or
for reorganizations, or for appointment of a receiver or trustee of all or a substantial portion of the Property, or if Lessor makes an assignment for the benefit of creditors, or an
execution or attachment shall be issued against Lessor on all or a substantial portion of the Property, and such adjudication, appointment, assignment, petition, execution or attachment
shall not be set aside, vacated, discharged or bonded within 30 days after the termination, issuance, or filing of the same; or
The taking by any person of the Property or any part thereof by foreclosure, execution, or other process of law or equity.
Upon the occurrence of any event of default by Lessor, without further notice to Lessor, Lessee shall be entitled to: (i) terminate this Lease; (ii) recover from Lessor the actual and
consequential damages incurred by Lessee as a result of such default; (iii) offset the actual and consequential damages incurred by Lessee as a result of such default against any amounts
due and payable by Lessee to Lessor under this Lease; (iv) cure such default and offset the costs of cure paid by Lessee against any amounts due and payable by Lessee to Lessor under
this Lease; and/or (v) effectuate such other rights and remedies against Lessor as are available to Lessee under the laws of the State of Idaho.
Indemnification.
Lessee hereby releases and will defend, hold harmless, and indemnify Lessor, and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors, and assigns, from
and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including, but not limited to, reasonable attorneys’ fees incurred
and/or those necessary to successfully establish the right to indemnification) (collectively, “Claims”), arising from (i) Lessee’s breach of this Lease; (ii) any negligent act or omission
or intentional misconduct by Lessee, its agents, contractors, employees, or invitees, or the other tenants (past and present) of the Real Estate; (iii) any damage to the Real Estate,
except to the extent caused by the gross negligence or intentional misconduct of Lessor or its directors, officers, employees, or agents; and (vi) violation of applicable law by Lessee,
its agents, contractors, employees, or invitees, or the other tenants (past and present) of the Real Estate; Lessee’s duty to defend is independent of its duty to indemnify. Lessee’s
obligations under this Section are independent of all of its other obligations under this Lease. Lessee will use counsel reasonably satisfactory to Lessor to defend each Claim, and
Lessor will cooperate (at Lessee’s expense) with Lessee in the defense. Lessee will not consent to the entry of any judgment or enter into any settlement without Lessor’s prior written
consent, which may not be unreasonably withheld.
Lessor hereby releases and will defend, hold harmless, and indemnify Lessee, and/or its directors, officers, employees, agents, successors and assigns, from and against Claims, arising
from (i) Lessor’s breach of this Lease; (ii) any gross negligent act or omission or intentional misconduct by Lessor, its agents, contractors, employees, or invitees; and (iii) violation
of applicable law by Lessor, its agents, contractors, employees, or invitees.
Attorneys’ Fees. In the event of litigation, the prevailing Party shall be entitled to recover reasonable costs and expenses, including attorneys’ fees.
Title. This is a true rental agreement and title and ownership shall at all times remain with Lessor.
Business Day. If any date specified in this Lease as a date for taking action falls on a day that is not a Business Day, then that action may be taken on the next Business Day. “Business
Day” shall mean any day other than a Saturday, Sunday, or any day that banks generally are closed for business in Rexburg and Idaho Falls.
Amendment. This Lease may only be amended by a writing signed by the Parties.
Waiver. No waiver of any breach of this Lease shall be deemed a waiver as to any other breach of this Lease. No forbearance or failure to enforce any provision of this Lease shall
be deemed a waiver of any right hereunder.
Taking. In the event any portion or all of the Real Estate shall be taken by eminent domain or similar means all of the proceeds of such taking shall belong to Lessor, and Lessee’s
rental obligation hereunder shall abate in proportionate to the amount of the Real Estate so taken. However, if the taking is such that it prevents the use of the remaining Real Estate
for the purposes for which Lessee has previously used the Real Estate, Lessee may elect to terminate this Lease.
Choice of Law. This Lease shall be interpreted under the laws of the State of Idaho. If any portion of this Lease is declared unenforceable, the remaining provisions herein shall continue
in full force and effect.
Time of the Essence. Time is of the essence of each and every obligation under this Lease.
Assignment. Lessee may not assign, sublet, license, or otherwise authorize the use or possession of any portion of the Real Estate by anyone other than Lessee without the prior written
approval of Lessor.
Entire Agreement. This Lease and the exhibit attached hereto contain the entire agreement between Lessor and Lessee and supersedes all prior agreements between the Parties with respect
to the subject matter hereof.
Notices. Notices or demands required to be given herein shall be in writing and addressed to the other Party’s address set forth on the signature page hereto or such other address provided
by written notice hereunder and shall be effective (a) upon the next Business Day if sent by guaranteed overnight express service, (b) on the same day if personally delivered, or (c)
three (3) days after mailing if sent by certified or registered U.S. mail, postage prepaid.
[Signature Page Follows]
\\law\data\wpdata\djp\20861 development workshop\rexburg lease\lease agreement (eicap) v03.docx
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the Effective Date.
Lessee:
Lessor:
City of Idaho Falls-Zone/Kidsburg
Development Workshop, Inc.
By:
By:
Name:
Name:
Title:
Title:
Address:
35 North 1st East
Address:
555 W 25th St
Rexburg, Idaho 83440
Idaho Falls, Idaho 83402
Exhibit A
Description of Real Estate
The leased Real Estate is on a parcel of land in the NW1/4 of section 17, Township 6 Nort, Range 40 East of the Boise Meridian, Madison County, Idaho more particularly described as follows:
The leased Real Estate is commonly known as 275 Stationary Road Rexburg, Idaho 83440, consists of the Northwest Entrance.
555 West 25th Street ∙ Idaho Falls, Idaho 83402 ∙ 208.524.1550 ∙ Fax 208.523.3148
Offices in Idaho Falls, Rexburg, and Salmon, Idaho
Signature Page
to
Real Estate Lease
Quality People, Programs, and Products
Since 1971
Development workshop, inc. Does not discriminate in admission or access to, or treatment of, employment in its programs and activities. Equal employment employer. Nationally accredited
by the commission on accreditation of rehabilitation facilities
8 – REAL< Estate Lease