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HomeMy WebLinkAboutHK Contractors - land leaseLEASE AGREEMENT Copy This Lease Agreement (``the Agreeme"f'), is entered into this lst day of March 2024 (the"Ejrecft.ve Da!fe"), by and between IIK Contractors with an address of 6350 South Yellowstone Highway, Idaho Falls, ID 83402 ("£¢#dJond") and Bonneville Joint School District #93, with an address of 3497 North Ammon Road, Idaho Falls, ID 83401 ("re#¢#r"). RECITALS A Landlord is the owner of I.5+/-acres of real property, an approximately 2,000 square foot building, and other improvements located at 2017 E 49th N, Idaho Falls, ID 83401 the property, being more particularly described and depicted in Exhibit A attached hereto and made a part hereof (the "Praperty'). 8. Landlord desires to lease the property to Tenant, and Tenant desires to lease the Property from Landlord, all in accordance with and subject to all of the terms, conditions and covenants set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: AGREEh4ENT I. EEm. This Agreement shall commence on the Eifective Date and Tenant shall have possession and use of the Property, subject to the conditions and limitatious set forth therein, for a tern of one year beginning on March 1, 2024 at 12:00 a.in. MST and ending Fchruary 28, 2025 at 11 :59 p.in. MST and the Agreement is renewal]le from year to year thereafter ("Term) unless written notice of termination is given by either Landlord or Tenant at least sixty (60) days prior to the expiration of the then current date of expiration. 2. Bent. Tenant shall pay Landlord s -0-per month as rent for the property (the"Base Rent'). 3. Possession and use of prooertv. Tenant shall be entitled to possession of the Property on the first day of the Tern of this Agreement, and shall yield possession to the Landlord at the end of the Tern. Tenant shall use the Property for the storage and administrative support functious, and purposes ancillary thereto, and the Property shall not be used for any other purposes whatsoever. Tenant shall not use the Property or conduet from the Property any unlawful business or activities. Use of the Property for a purpose not expressly permitted in this paragraph shall constitute a material breach of this Agreement. Landlord makes no representations that the Property is suitable, in whole or in part, for Tenant's intended use. Tenant shall be solely responsible for assuring that the Property is suitable for Tenant's intended purposes. 4. Ouiet Eniovment. Landlord covenants that its estate in the property is in fee simple and that the Tenant, if not in default under this Agreement, shall peaceably have, hold and enjoy the Property for the Term of this Agreement. Landlord also warrants the terns and 95352825 .4 003 3901 -00039 conditions of this Agreement shall remain effective until expiratlon of the Tern and any renewal thereof if the Property is hereafter sold or transfened to another party. 5. Exclusivitv. Landlord warrants that Landlord has full authority to enter into this Agreement and that it will not lease the Property, nor any portion thercof to any other person or entity during the Term of this Agreement. Landlord will not impede or interfere with Tenants oxptious. 6. Condition of prol)ertv. With the exclusive exception of the repairs referenced in 14(a), Tenant represents and warrants that prior to entering into this Agreement it had an apportunity to inspect the Property and conduct any due diligence it desires with regard to the Pioperty, and Tenant finds the Property suitable for its purposes. TENANT ACCEPTS THE PROPERTY AS OF THE DATH OF POSSESSION, "AS-IS", "WIIERE IS", AND "WITII ALL FAUIJTS". 7. Surrender of premises. Upon the expiration or earlier temination of this Agreement, Tenant shall surrender to Landlord the Property, vacant, broom clean, in good order and condition, ordinary wear and tear excepted. Unless waived in writing, within thirty (30) days following the expiration or temination of this Agreement, Tenant shall remove its equipment, and all of its other personal property from the Property. Tenant grants Landlord the right to cause any of Tenant's personal property that remains on the Property after the expiration of the time for removal as provided under this paragraph to be removed or discarded at the sole expense of Tenant. 8. Utilities. Tenant shall pay from and after the Effective Date through the end of the Term, all expenses related to all utilities servicing the Property, and for the upkeep, repair and or replacement of mechanical, electrical, plumbing and other systems, and repair or replace any other items situated upon the Property, so that at the end of the Term, the Property is left in the condition described in as good or better condition than the Property was in on when possession was yielded to Tenant with reasonable wear and tear excepted. In the event that Landlord makes a payment of an item attributable to Tenant's obligations under this Agreement (e.g., utilities, etc.), Tenant shall promptly, and within fourteen days notice from Landlord, reimburse Landlord for the same. Notwithstanding the foregoing, Landlord shall be responsfole for any repair or replacement that would constitute a capital improvements, but may charge to Tenant a portion of any capital expenditures attributable to the remaining portion of the Term based on a straight-line amortization (based on the actual useful life of the improvement). 9. Rel}airs and Maalntenance of prol}ertv. Tenant will be responsible to replace and repair the structural portious of the building and any capital improvements situated upon the Property. For purposes of this Agreement, the stmctural portions of the building shall mean the foundation, exterior walls, load bearing components of interior floors and walls, the roof and all sewers, pipes, wiring and electrical fixtures outside of the building. All other maintenance and repairs shall be perfomed and paid for by Tenant. 10. Real Estate Taxes. SDecial Assessments. Tenant shall be responsible for the payment of all applicable real estate taxes and special assessments assessed upon the Property. 95352825 .4 0033901 -00039 Tenant shall also be responsible for the payment of taxes or special assessments assessed upon the Property related to Tenant's improvement of the Property from and after the Effective Date. 11. Indemnification. Tenant shall defend, indemnify and hold Landlord, its officers, employees, agents, insurers, sureties, and affiliated corporations, harmless from any and all losses, expenses (including but not limited to attorney and expert fees), claims, liens, suits, liabilities, fines, penalties, and remedial or clean-xp costs arising out of or in any way related to (i) Tenant's use of the Property, (ii) Tenant's breach of this Agreement, or (iii) any act or omission by Tenant, its invitees, or any person performing work directly or indirectly on behalf of Tenant on the leased Property . In case any action, suit or proceeding is brought against Landlord and/or Landlord's agents by reason of any such occurrence, Tenant shall, at Tenant's expense, defichd sueh action, suit, or proceeding, or cause the same to be defended by counsel approved by Landlord. 12. Insurance, Tenant shall obtain and maintain during the term of this Agreement the types and amounts of insurance coverage set forth on Exhibit 8, and Tenant will comply with all other applicable terms and provisions shown on Exhibit 8, including Out not limited to) requirements that Landlord be named as an additional insured, but only to the extent of the insured liabilities assumed by Tenant under this Agreement, on the policies as set forth in Exhibit a. Landlord shall provide insurance coverage which shall insure against damage or destruction of the Property, and Tenant shall be responsible for providing insurance coverage on its possessions and personal property at the Property. 13. Compliance with Laws. Tenant will conduct its activities on the premises in a safe and woinanlike manner, and shall exercise due care to avoid injury to officers, employees, agents, or guests of Tenant, or other third parties. Tenant will operate its equipment and cany on its business from the Property in such manner as to not constitute a nuisance, as defined by applicable law. Tenant shall observe at all times MSHA and/or OSHA or other applicable rules and regulations regarding safety and shall comply with all state, federal, and local laws, rules, ordinances, statutes, regulations, and/or orders, whether enacted or effective now or in the future (collectively "£¢t.;s') pertaining to Tenant's activities on the Property, and any safety or other rules concerning the Property that Landlord may (but shall not be obligated to) have reasonably adopted, all at Tenant's expense. 14. Alterations. Improvements: Repairs: and Fixtures. (a) Except as set forth herein, Tenant shall not alter or improve the premises without the prior written consent of Landlord to de so, which consent shall not be unreasonably withheld. Landlord shall have the opportunity to review any plans or drawings prior to approval. Upon vacating the Premises, Tenant shall be liable to return the Premises to Landlord in the same condition as when Tenant took possession or a conditlon acceptable by Landlord, reasonable wear and tear excepted. a) Tenant shall, at its sole cost and expense, secure all necessary approvals, licensing and building pemits required for the construction, demolition and/or alteration of the improvements and shall provide Landlord with written notice thereof when all such approvals, licensing and building permits have been secured. Landlord shall cooperate with Tenant to obtain all such permits and licenses. (c) Tenant, at Tenant's sole cost and expense, shall keep the premises in good order, condition and repair and in a clean, safe and sanitary condition free of waste. (d) Tenant shall not suffer or permit to remain upon all or any part of the premises or Tenant's interest in this Lease any lion for work performed or materials supplied to or for Tenant or to or for the Premises, or any other lien or encumbrance thereon arising by reason of Tenant's use and occupancy thereof. In addition to being an Event of Default, Tenant, at its sole cost and expense, shall cause any such lien or encumbrance to be removed and satisfied of record within thirty (30) days after notice of the filing thereof. In the event such lion cannot be released and removed through appropriate proceedings within such thirty (30) day period, Tenant shall cause siich lien to be bonded or insured over by a reputable title insurer or surety reasonably satisfactory to Landlord, or provide Landlord with a letter of credit, certificate of deposit or other comparable security in the amount of one hundred percent (100%) of the amount of such lion. Tenant thereinafter shall be entitled to contest such lien or encumbrance as long as Tenant shall contest such lion or encumbrance diligently by appropriate proceedings (provided such contest sshall not cause any sale, foreclosure or forfeiture of the Premises by reason of such nonpayment) and cause the same to be removed or discharged prior to entry of any order foreclosing the same. In the event that any such lion or encumbrance is not so released and removed, bonded over or secured or insured against, or in the event Tenant shall fail to contest such lien or encumbrance as herein required, Landlord may, upon at least five (5) days' notice to Tenant, take all action necessary to release and remove such lien or encumbrance and avail itself of any securitty provided by Tenant (without any duty to investigate the validity thereof), and Tenant shall within five (5) days of Landlord's demand, pay to Landlord, all costs and expenses (including, without limitation, reasonable attomeys' fees and expenses) incurred by Landlord in connection with the release and removal of such lion or encumbrance. 15. Environmental. Except for Hazardous substances (defined below) contained in products used by Tenant in de minimis quantities for its business purposes and ordinary cleaning and office purposes, Tenant shall not cause or permit any Hazardous Substances to be used, stored, generated or disposed of on or in the Premises by Tenant, Tenant's agents, employees, contractors or invitees, without first obtaining Landlord's whtten consent. If HHazardous Substances other than those approved t)y Landlord herein are used, stored, generated or disposed of on or in the Premises, or if the Premises have been contaminated due to the fault of Tenant, then Tenant shall indemnify, defend and hold harmless Landlord from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, a decrease in value of the Premises, damages due to loss or restriction of licensable or usable space, or any damages due to adverse impact on marketing of the space, and any and all sums paid for settlement of claims, attorney fees, consultant and expert fees) arising during or after the Term and arising as a result of such contamination caused by Tenant. This indemnification includes, without limitation, any and all costs incurred due to any investigation of the site or any cleanup, removal or restoration mandated by a federal, state or local ngeney or ppolitical subdivision. Without limitation of the foregoing, if Tenant causes or knowingly pemits the presence of any Hazardous Substance on the Premises and such result in contamination, 95352825 .4 003 3901 -0003 9 Tenant shall promptly, at its sole expense, take any and all reasonable and necessary actions to anempt to return the Premises to the condition existing prior to the presence of any such Hazardous Substance on the Premises. Tenant shall first obtain Landlord's approval of any such remedial action. As used herein, "Hazardous Substance" includes any and all material or substances which are classified as "hazardous waste," "extremely hazardous waste," "hazardous materials," "hazardous substance," or any equivalent classification pursuant to state, federal, or local governmental law` 16. Tenant's Risk. Tenant understands and agrees that all items stored by Tenant, or others with Tenant's pemission, on the Premises are stored at TENANT' S OWN RISK Landlord cannot and does not ensure the safety of items stored by Tenant or others as ppermitted by Tenant. Tenant assumes the risk of loss to Tenant's property due to vandalism, theft, malicious mischief, unauthorized use, fire, collision, natural elements, acts of god or any other cause whatsoever. Landlord has provided no security against risks of loss to Tenant's property, against injury to the person of Tenant or Tenant's employees, agents, invitees, and guests. Thus, the Landlord shall not be liable for any injury or damage to the Tenant or any person or to any property at any time on the Premises from any cause whatsoever. Tenant expressly assumes the risk of any loss to Tenant's property from any of the causes whatsoever, except for the gross negligence or willful misconduct of Landlord or any of Landlord's agents, and Tenant understands and agrees that lack of security shall not be deemed negligence on the part of Landlord. Further, Tenant hereby releases Landlord from any sueh liability for damages and hereby waives any claim for damages arising out of the use of the Premises and agrees to hold harmless Landlord from any claim or demand arising out of the use of the Premises, including but not limited to costs of investigation, settlement, litigation, attorney fees, and expert witness fees. Tenant assumes the responsibility for and will undertake to secure their property from all risks. 17. Default. (a) Default-Landlord: Landlord covenants and agrees that should it violate any of the covenants and conditions of this Lease, and if such defalilt is not cured within ten (10) days after receiving written notice from Tenant of such default, then Tenant may, in addition to any other remedy provided available under law or equity, terminate this lease. a) Default-Tenant: In the event Tenant shall fail to pay all or any part of the rental herein provided, and such failure shall continue for ten (10) days after receipt of written notice thereof from Landlord of such default, or if Tenant should breach any of the covenants or agreements of this Lease other than those relating to payment of rent, and shall fail to cure, or take reasonable actions to cure such breach within ten (10) days after receiving such notice, then Landlord may, in addition to any other remedy provided available under law or equity, terminate this lease. Any violation of any of the covenants and condition of this Lease by any sub-Tenant shall be an event of default. 18. Eminenl: Domain. In case the whole or substantial partofthe premises shallbe taken by the city or state or other public authority for any public use, then this Lease shall teminate from the time when possession of the whole or of the part so taken shall be required for such public use; and the Tenant shall not claim or be entitled to any part of the award to be made for damages for such taking for public use; and such taking shall not be deemed a breach of the LLandlord's covenant for quict enjoyment hereinbefore contained. Tenant shall be al)le to make any claim that it may have against the authority taking the property to the extent that such claim shall not diminish the claim of Landlord. If part of the Property shall be taken, and this Agreement is not terminated, the Base Rent payal)1e hereunder during the unexpired Term shall be prorated in proportion to the part of the Property taken. 19. AI]Dlicable Law. This Agreement shall be governed by and construed in aaccordance with the internal laws of the State of Idaho without giving effect to any choice or cconflict of law provision or rule (whether of the State of Idaho or any other jurisdiction) that would cause the appllcation of laws of any jurisdictlon other than those of the State of Idaho. 20. Counterrmrts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 21. Disclaimer of conseciuential Damages. IN NO EVENT SIIALL EITHER PARTY BE LIABI.E UNDER THIS AGREEMENT TO TIIE OTHER I'ARTY OR ANY TlnRD pARTy FOR ANT CONSEQUENTIAL, INclDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS 0F USE, REVENUE OR PROFIT, WIIETHER ARISING OUT 0F BREACII OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF VVHETHER SUCII DAMAGES WERE FORESEEABIjE AND lh/IIETHER OR NOT THE OTHER PARTY WAS ADVISED 0F TIIE POSSIBILITY OF SUCII DAMAGES. 22. Cab on all other Damages. IN NO EVENT SIIALL LANDLORD'S AGGREGATE LIABILITy ARISING OUT oF oR RELATED ro TIIIS AGREEnmNT, wllETHER ARlslNG OuT OF OR RELATED TO BREAcll OF CONTRACT, roRT (INCLUDING NEGljlGENCE) OR OTIIERWISE, EXCEED TIIE TOTAL CUMULATIVE RENT PAID TO TIIE LANDLORD PURUANT TO TIIIS AGREEMHNT. 23. Waiver. The failure of either party to insist, in any one or more instances, upon a strict performance of any of the terms and conditions of this Agreement, or to exercise or fail to exercise any aption or rigbt contained herein, shall not be construed as a waiver or a relinquishment for the future of such right or option, but the same shall continue and remain in full force and effect. The continued performance by either party of this Agreement with knowledge of the breach of any term or condition hereof shall not be deemed a waiver of such breach, and no waiver by either party of any provision hereof, shall be deemed to have been made, or operate as estoppel, unless expressed in writing and signed by such party. 24. Severabilitw. Any provision of this Agreement that is found by an afoitrator or other adjudicator of competent jurisdiction to be invalid, void, or otherwise unenforceable shall in no way affect, impair, or invalidate any other provision hereof and the remaining provisions hereof shall nevertheless remain in full force and effect. To the extent that any such provision is so found to be invalid, void, or otherwise unenforceable as written, the parties authorize the adjudicator to revise it retroactive to the effective date so that it is enforceable to the greatest extent allowed by applicable law. In the event that the adjudicator declines to exercise such authority, the parties agree to make such revision. 25. nntire Agreement. This Agreement sets forth the complete understandmg and agreement of the parties. No oral statements, representations or agreements other than this Agreement shall have any force or effect and Landlord and Tenant agree that they will not rely on any representations or agreements other than those contained in this Agreement. 26. Binding Effect: Assiglnment. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. No other person or entity shall aacquire or have any right under, or by virtue of, this Agreement. Tenant shall not assign or transfer any right or delegate any obligation hereunder without the prior written consent of LLandlord, in its sole discretion. Notwithstanding the foregoing, no consent by Landlord shall be rrequired for an assignment to an entity (i) which controls, is controlled by, or is under common control with Tenant; (ii) results from the merger or consolidation with Tenant; or (iii) which acquires all or substantially all of the assets or ownership interest of Tenant as pertains to the business conducted on the Property. Landlord may assign or transfer its rights hereunder to any affiliate. Any purported assignment or transfer in violation of this section shall be null and void. In the event of a permitted assigrment, Tenant shall remain at all times fully responsible and liable for the payment of rent and for compliance with all of Tenant's other obligatious under this Artyement. 27. Headings. The headings in this Agreement are for the purposes of reference only and shall not affect or define the meanings hereof. 28. RIghts cumulative. The various rights, powers, options, electious and remedies of either party, provided in this Agreement, shall be coustnied as cumulative and no one of them as exclusive of the others, or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any definlt remains in any way unremedied, unsatisfied or undischarged. 29. Survival. All agreements, representations, warranties and indemnifications hereunder shall survive the expiration or earlier termination of this Agreement. 30. Notices. Any notice or other communication provided for hereunder will be in writing and may be (i) served by personal delivery, (ii) made by facsimile transmission, or (ill) sent by overnight couner service (with all fees prepaid) to the receiving parties as follows, or to any other address which either party may hereafter designate for itself in writing: 953 52825 .4 003 3901 -00039 If to Landlord: With copy to: If to Tenant: HK Contractors Attn: Real Estate Manager 6350 S Yellowstone Highway Idaho Falls, ID 83402 (2o8) 976€ i;23 -GG'OO CRII Americas, Inc. Law Group Attn: General Counsel 900 Ashwood Pkwy, Suite 600 Atlanta, GA 30338 Fax (770) 392-5305 Bonneville Joint School Distnct #93 3497 North Ammon Road Idaho Falls, ID 83401 Phone: (208) 227-9667 31. No presuml)tion Against Drafter. This Agreement and each of the terns and provisious hereof are deemed to have been explicitly negotiated between the parties, and the language in all parts of sueh agreements shall, in all cases, be coustnied according to its fair meaning and not stnctly for, or against, any party, regardless of who drafted it. 32. Memorandum of Lease. Each of Landlord and Tenant acknowledge that siibsequrent to the execution of this Agreement, one or more Memoranda of Lease may be filed and recorded with the applicable recorder of real property records regarding the existence and duration of this Agreement. 33. Brokerage. Tenant represents and warrants to Landiord that it has had no dealings with any broker or agent in connection with the negotiation of execution of this Agreement. Tenant agrees to indemnify, defend and hold hamless the Landlord against all costs, expenses, attorneys' fees or other liability for commissions or other compensation or charges claimed by any broker or agent claiming the same by, through or under Tenant. 34. Incornoration I)I Exhibits and Attachments. All exhibits and attachments, refened to in this ASeement are incorporated into this Agreement and made a part hereof for all intents and purposes. 35. Certification bv Tenant. Tenant certifies that it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and it is not engaged in this transaction, directly or indirectly on behalf of; or instigating or facilitating this transaction, directly or indirectly on behalf of; any sueh person, group, entity or nation. 95352825.4 003390L-00039 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first set forth above. (Signatures) LANDLORD: HK Contractors TENANT: Bonneville Joint School District ro3 953 52825 .4 0033901 -0003 9 953 52825 .4 003 3901 -00039 EXHIBIT 8 Minimum Insurance Requirements I. Workers' Compensation and Employers' Liability • Statutory coverage for state workers' Compensation Act • $1,000,000 Employers' Liability 2. Automobile Liability • Limits: $1,000,000 CSL per occurrence • overage: Applies to all owned, non-owned, leased and hired vehicles including tankers and trailers. 3. Commercial General Liability • Limits: $1,000,000 each occurrence $2,000,000 General Aggregate • Coverage: ISO commercial General Liability (occunence) form 4. Excessrumbrella policy • Excess/Umbrella coverage with minimum limits of $3,000,000, to follow form of each of other required coverages. 5. Other Requirements: (a) Landlord shall be named as an Additional Insured, but only to the extent of the insured liabilities assumed by Tenant under this Agreement, under coverages 2 and 3. (b) The Tenant's Insurer shall waive subrogation in favor of Landlord on all policies hereunder. (c) The Tenant's insurer shall provide 30 days prior written notice of cancellation, non-renewal or material change. (d) The Tenant's insurance shall be primary over any insurance carried by Landlord. (e) A duly executed certificate of insurance displaying the above-required coverages and a copy of the endorsement evidencing that the Landlord is included as an additional insured on the liability policies shall be sent to Landlord's designated representative within five days following execution of this Agreement. 95352825 .4 0033901 -00039