Lease Agreement with Option to Renew with Generations Plaza, LLCADA CWVY RECOROM
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With Option to Renew
RECORDED -REQUEST OF
- MERID
EEERI�
10101 261
THIS AGREEMENT is made and entered into this 7f day of 6?G tura i,
2000, by and between THE CITY OF MERIDIAN, 88 E. Idaho, Meridian, ID 83642, hereinafter
referred to as the "Lessor," and GENERATIONS BUILDING, LLC, an Idaho Limited Liability
Company, 910 Main Street, Suite 2.40, Boise, ID 88702, hereinafter referred to as the "Lessee."
WITNESSETH:
WHEREAS, Lessor owns a parcel of unimproved real property immediately
adjacent to real property where Lessee is constructing a brand new building which will house a
restaurant on the ground floor; and
WHEREAS, Lessor, as one of its goals, has determined that revitalization of
downtown Meridian is in the best interests of its citizens; and
WHEREAS, in furtherance of Lessor's goal of revitalizing the older portion of
Meridian, it is necessary to draw people and interest to the downtown corridor; and
WHEREAS, Lessee will construct and maintain a patio and landscaping which will
match and correspond well with the Lessor's improvements to its Generations Plaza; and
entered into.
WHEREAS, it is in the best interests of Lessor and its citizens that this Lease be
NOW, THEREFORE, based upon the mutual covenants contained herein, the
parties agree as follows:
That the said Lessor, for and in consideration of the rents, covenants and
agreements hereinafter mentioned on the part and behalf of the said Lessee to be paid, kept and
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performed, does by these presents grant, demise and lease unto the said Lessee, and the said Lessee
does by these presents hire, rent and take from the said Lessor, that certain unimproved real
property and premises described as follows, to wit:
An area 18 feet wide by 62.5 feet long located in the
Southeast corner of Lot 3, Block 5, of the Amended
Plat of the Townsite of Meridian, Ada County,
Idaho.
TO HAVE AND TO HOLD said premises, together with the appurtenances,
privileges, rights and easements thereto belonging, unto the said Lessee for the term of five years,
ten months, said term to commence on December 1, 2000, and terminate on September 30, 2006,
for the rental and upon the terms and conditions as follows:
as follows:
1. RENTAL: Lessee covenants and agrees to pay annual rent for the premises
$1822.50 on December 1, 2000;
$2106 on October 1, 2001;
$2190 on October 1, 2002;
$2278 on October 1, 2003;
$2369 on October 1, 2004; and
$2464 on October 1, 2005.
2. OPTION TO RENEW AND CONSIDERATION: Provided that this
Lease shall be in full force and effect and that the Lessee shall not be in default hereunder, the
Lessor hereby grants to Lessee an exclusive option to renew this Lease for an additional five (5)
year term certain commencing October 1, 2006, and extending through September 3o, 2011, upon
the same terms and conditions contained in this Lease, save and excepting rent. The rental for
the renewal period shall be negotiated by Lessor and Lessee; provided, however, that in the
absence of agreement, the annual rent for the renewal period will be set by three (3) arbitrators,
one chosen by Lessor, one chosen by Lessee, and those two choosing a third. The parties agree
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that the annual rental set by a majority of these three (S) arbitrators will be binding on Lessor and
Lessee, will constitute the annual rental for the renewal period, and will be payable by Lessee to
Lessor on October 1 of each year commencing October 1, 2006,
Should Lessee desire to exercise this option to renew this Lease Agreement, Lessee
shall (1) notify Lessor in writing no later than midnight August 15, 2006, of its intention to
exercise the option to renew and (2) pay Lessor the sum of $100.00 as the consideration for the
option to renew no later than midnight August 15, 2006. In the event of Lessee's failure to notify
Lessor in the time and in the manner specified and pay the consideration for the option, this option
shall be null and void.
In the event that Lessee does not exercise the option as herein provided, then Lessor
shall have the right to place signs upon said leased premises indicating the same are available for
lease or sale and Lessor shall have the right during the remaining period of the Lease Agreement
to show the leased premises to prospective lessees or purchasers.
S. USE OF PREMISES: Lessee covenants and agrees that the leased premises
shall be used solely for the construction of a patio immediately adjacent to real property where
Lessee is constructing a building which will house a restaurant on the ground floor, entrance area,
and associated landscaping for use in connection with the building that is to be built immediately
east of the leased premises. The patio and entrance area, once constructed, shall be used ancillary
to the restaurant which will be housed in the adjacent building and for the furnishing of space for
restaurant patrons to consume food and beverage. No amplified live music shall be allowed on the
premises. Amplified background music, which is the same as any background music which may be
supplied inside the restaurant building will be allowed, provided, however, that such background
music must be low in volume and must not interfere with any uses of the adjacent city park.
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Lessee further agrees to restrict patron usage of the patio area to the hours of 10:00 a.m. through
12:00 midnight. No signage will be allowed on the patio. Further, no alcohol or tobacco
advertising, including "brand" items on the patio will be allowed.
4. MAINTENANCE: Lessee agrees to maintain the demised property in as
good condition as the same are in at the time Lessee shall take possession of the demised premises,
reasonable wear, tear and damage by the elements excepted. In exchange for use of the parking lot
by the public, the Lessee agrees to maintain the parking lot and keep it in as good a condition as it
now is, reasonable wear and tear excepted during the remainder of the term of this lease. Lessee
shall be responsible for annual maintenance and repair, including striping and sealing during each
year of this lease.
5. ALTERATIONS AND IMPROVEMENTS: Lessee shall be entitled to
construct on the leased premises a patio and landscaping approved by the Lessor as contained in
the drawing dated August 14, 2000, from The Land Group, Inc., which is attached to this Lease as
Exhibit "1" and, by this reference, incorporated herein. Lessee shall be required to erect a non-
combustible, non -site -obscuring fence around the patio area. Any gates in the fence must be
approved in advance by the Director of Parks and Recreation for Lessor. Lessee shall reimburse
Lessor for any costs incurred by Lessor for installing landscaping on the Lessee's premises, and
such landscaping shall include the following:
1. Excavation;
b. Top soil;
C. Concrete edging;
5. Irrigation system;
6. Planting material; and
7. Planter bed preparation and mulch.
Lessee agrees that upon the termination of this Lease, such improvements
designated for removal by Lessor shall be removed by Lessee at Lessee's own cost, provided,
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however, that any damage which might be occasioned by the removal thereof will be repaired at
Lessee's expense. All other improvements as shall have been added or made by Lessee which
Lessor does not designate for removal shall revert to Lessor and become a part of the leased
premises.
6. WATER: Lessor agrees to supply the water for the irrigation of the
landscaping on the leased premises.
7. COMPLIANCE WITH LAW: Lessee agrees to comply with all municipal,
state and federal laws, rules, regulations and ordinances and to do all things necessary to stay in
compliance with the same.
8. ASSIGNMENT OR SUBLEASING: Lessee shall be allowed to sublet the
leased premises to Smoky Mountain Pizza & Pasta, Meridian, LLC, but such assignment or
sublease shall not relieve Lessee of its primary liability under this Lease, and no other assignment
or sublease shall be allowed without the Lessor's consent, which consent shall be discretionary as
to the Lessor. In the event Smoky Mountain Pizza & Pasta, Meridian, LLC vacates the premises
during the term of this Lease or any extension hereof, and Lessee does not replace its tenant or in
the event Lessor does not consent to a replacement tenant, then this Lease shall terminate and all
rents theretofore paid by Lessee shall be retained by Lessor and Lessee shall not be entitled to any
refund for prepaid rent.
9. NONDISCRIMINATION: Lessee will not, on the grounds of race, color,
religion, sex, age, or national origin, discriminate or permit discrimination as to any person or
group of persons in any manner. Non-compliance with this provision shall constitute a breach of
this Lease, and in such event, Lessor may take the appropriate action to enforce compliance,
terminate this Lease, or seek judicial enforcement.
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10. AUTOMATIC CANCELLATION: It is understood and agreed that
voluntary or involuntary filing of bankruptcy, or assignment for the benefit of creditors, or any
other act of insolvency by or on behalf of the Lessee shall automatically cancel this Lease, and
Lessor shall be entitled to immediate possession of the leased premises.
11. DAMAGE OR DESTRUCTION: If the leased premises shall be damaged
by fire, the elements, explosions or other causes, Lessee will, at Lessee's own proper cost and
expense, cause the same to be repaired and restored to the same condition as before such damage
was done, subject to delays due to adjustment of insurance claims, strikes and other causes beyond
Lessee's control or, in the alternative, Lessor shall cause such repair to be made and Lessee shall
reimburse Lessor therefor from insurance proceeds received by Lessee. If the demised premises
shall be so damaged as to be unfit in whole or in part for occupancy or use in the manner and form
as theretofore used, Lessee shall cause the same to be promptly restored, repaired and rebuilt to the
extent of Lessee's obligations for maintenance under the terms of this Lease.
12. FIRE HAZARDS: The Lessee shall not do anything in the premises or
bring or keep anything therein which will increase the risk of fire, or which will conflict with the
regulations of the fire department or any fire laws, or with any fire insurance policies on the
buildings, or with any rules or ordinances established by the board of health, or with any
municipal, state or federal laws, ordinances or regulations.
is. LABOR CONTRACTS AND EMPLOYEES: The parties hereto expressly
covenant and agree that all labor contracts and employment agreements with employees shall be
made directly with Lessee and that all such employees shall be deemed solely the employees of
Lessee and in no way employees of Lessor. Lessee covenants and agrees to indemnify and hold
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harmless Lessor of and from any liability for any acts of employees of Lessee or any acts of persons
working for Lessee under a labor contract.
14. RIGHT OF INSPECTION: Lessor shall have the right to enter the
demised premises at any reasonable time to examine the same and to determine the state of repair
or alterations which shall or may be necessary for the safety and preservation of the premises.
15. WASTE PROHIBITED: Lessee shall not commit any waste or damage to
the premises hereby leased nor permit any waste or damage to be done thereto. On a daily basis,
Lessee will insure that the leased premises is kept clean and free of debris and litter. Lessee will
allow the Lessor to dispose of six (6) bags of litter per week, in Lessee's dumpster, in exchange for
access across Lessor's property for solid waste disposal service. Lessee will be responsible to keep
the dumpster area clean and in an orderly fashion.
16. LIABILITY: Lessor shall not be liable for any injury or damage which may
be sustained by any person or property of the Lessee or any other person or persons resulting from
the condition of said premises or any part thereof, or from the street or subsurface, or from any
other source or cause whatsoever, nor shall the Lessor be liable for any defect in the building and
structures on said demised premises, latent or otherwise, and Lessee agrees to indemnify and hold
harmless Lessor from such liability.
17. LIABILITY INSURANCE: Lessee shall maintain a comprehensive liability
insurance policy covering the above -demised premises during the term of this Lease with a
responsible insurance company, all at the sole cost and expense of Lessee, in the names and for the
benefit of Lessee and Lessor in the sum of $1,000,000.00 single -limit coverage. Lessee shall
furnish Lessor with a certificate of such liability insurance stating that said insurance is in full
force and effect during the term of this Lease or any extension thereof.
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18. FIRE AND EXTENDED COVERAGE INSURANCE: Lessee shall be
obligated to maintain fire and extended coverage on the leased premises for the full insurable value
thereof and Lessee shall name Lessor as an additional insured thereon. Lessee shall furnish Lessor
with a certificate of such insurance coverage at least annually. Lessee may maintain fire and
extended coverage on the contents and personal property of Lessee located on or within the leased
premises as Lessee desires, but Lessor shall be under no obligation to maintain any fire or
extended coverage insurance on those contents or personal property of Lessee.
19. CONDEMNATION: If the entire premises, or a substantial part thereof,
are condemned or taken by purchase in lieu thereof, then this Lease shall terminate as of the time
possession is taken. Any condemnation award shall be divided between the parties hereto in
accordance with and in proportion to their respective Lessor and Lessee interests.
20. SURRENDER OF POSSESSION: Lessee agrees to surrender possession
of said leased premises to Lessor at the expiration of this Agreement, or any extension thereof, in
the same condition as when the same were entered into by Lessee, wear and tear, reasonable use
and occupancy and damage by the elements excepted.
21. DEFAULT AND FORFEITURE: Time and the strict and faithful
performance of each and every one of the conditions of this Agreement is expressly made the
essence of this Agreement.
If Lessee fails to make any payment, or fails to perform any other obligation
imposed by this Lease Agreement, this shall constitute a default hereunder, and if Lessee shall fail
to cure that default within thirty (30) days after Lessor has served notice upon Lessee of said
default indicating the manner in which Lessee is in default, Lessor, immediately, and without
further notice or demand upon Lessee, shall have any or all of the following rights and options:
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(a) To specifically enforce this Lease Agreement by suit in equity;
(b) to declare this Lease Agreement null and void, forfeited and terminated, as of
the date of the breach, and to retain, as liquidated damages and reasonable rental, all payments
theretofore made and all improvements placed upon the premises, and to enter and repossess said
premises;
(c) to mitigate Lessor's damages occasioned by Lessee's default by retaking
possession of the leased property and reletting same, or any portion thereof, to other lessees, and,
upon that occurrence, Lessee shall receive a credit against the rental due by Lessee under this
Lease Agreement in the amount of rental received by Lessor from reletting the leased property, or
any portion thereof, to other lessees. Lessee shall, however, remain obligated to Lessor, pursuant
to the terms of this Lease Agreement, for the difference between the rental received by Lessor from
reletting the leased property, or any portion thereof, to other lessees and the amount of rent due
actually due pursuant to the terms of this Lease Agreement by Lessee.
If Lessee shall fail to surrender possession of the demised leased property to Lessor,
upon demand by Lessor, the Lessee shall be deemed guilty of an unlawful and forcible detention of
said leased property. if Lessee shall abandon or vacate said leased property, or if this Lease
Agreement be terminated for breach of any of the covenants and agreements herein contained,
Lessee hereby agrees to pay all reasonable expenses incurred by Lessor in obtaining possession of
said leased property from Lessee, including reasonable legal expenses and attorney's fees, and to
pay such other expenses as the Lessor may incur in putting the leased property in good order and
condition as herein provided, and also to pay all other reasonable and necessary expenses or
commissions paid by Lessor in re-leasing the leased property. In the event of notification of
default by Lessor to Lessee and Lessee does in fact cure such default, then and in that event Lessee
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shall pay, in addition to all arrearages as existing under the notice of default, the reasonable
attorneys fees incurred by Lessor in determination of the default and the notification to the
defaulting Lessee.
The foregoing rights and remedies are not intended to be exclusive, and all parties
shall have any and all other remedies permitted in law or equity. The rights and remedies of the
parties are not intended to be mutually exclusive except to such extent that they are inherently
and necessarily contradictory, and it is intended that all permissible remedies and rights may be
exercised concurrently or successively, or both.
22. HAZARDOUS SUBSTANCES: Lessee represents and warrants that the
premises will never be used for the generation, manufacture, storage, treatment, disposal, release
or threatened release of any hazardous substances as those terms are defined by applicable Federal
or State laws and regulations. Lessee agrees to indemnify and hold harmless Lessor against any
and all claims and losses resulting from a breach of this provision of this agreement. This
obligation to indemnify shall survive the payment of the indebtedness and the satisfaction of this
agreement.
23. TERMINATION: Notwithstanding the foregoing, this Lease shall
terminate in the event the improvements to the leased premises as contemplated by this Lease have
not been completed by Lessee by June 1, 2001, and in that event, all rents theretofore paid by
Lessee shall be retained by Lessor and Lessee shall not be entitled to any refund for prepaid rent.
24. ATTORNEY'S FEES: In the event an action is brought to enforce any of
the terms or provisions of this Lease, or enforce forfeiture thereof for default thereof by either of
the parties hereto, the successful party to such action or collection shall be entitled to recover from
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the losing party a reasonable attorney's fee, together with such other costs as may be authorized by
law.
In case suit shall be brought for an unlawful detainer of the said premises for the
recovery of any rent due under the provisions of this Lease, or because of the breach of any other
covenant herein contained on the part of Lessee to be kept or performed, Lessee shall pay to Lessor
all costs, expenses and attorney's fees which shall be incurred by Lessor in enforcing the covenants
and agreements of this Lease Agreement.
25. NOTICES: All notices required to be given to each of the parties hereto
under the terms of this Agreement shall be given by depositing a copy of such notice in the United
States mail, postage prepaid and registered or certified, return receipt requested, to the respective
parties as their respective addresses as set forth in the beginning of this Lease Agreement, or to
such other address as may be designated by writing delivered to the other party. All notices given
by certified mail shall be deemed completed as of the date of mailing except as otherwise expressly
provided herein.
26. REPRESENTATIONS: It is understood and agreed by and between the
parties hereto that there are no verbal promises, implied promises, agreements, stipulations,
representations or warranties of any character excepting those set forth in this Agreement.
27, BINDING EFFECT: The provisions and stipulations hereof shall inure to
the benefit of and bind the heirs, executors, administrators, assigns and successors in interest of
the respective parties hereto.
28. RECORDING: The parties hereto agree that they will not record a copy of
this Agreement, Lessee's occupancy of said premises being notice of Lessee's interest therein, and
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the recording of said Lease by Lessee shall, at the option of Lessor, constitute a default in the terms
and conditions hereof.
29. SITUS: This Lease is established and accepted by the Lessee under the laws
of the State of Idaho, and all questions concerning its validity, construction and administration
shall be determined under such laws.
so. HEADINGS: The bolded paragraph headings are for convenience only and
are not a part of this Lease agreement and shall not be used in interpreting or construing this
Lease agreement.
S1. SEVERABILITY: If any portion or portions of this Lease shall be, for any
reason, invalid or unenforceable, the remaining portion or portions shall nevertheless be valid,
enforceable and carried into effect, unless to do so would clearly violate the present legal and valid
intentions of the parties hereto.
IN WITNESS WHEREOF, the Lessor and Lessee do execute this Lease
Agreement the day and year first above written.
THE CITY OF MERIDIAN
LESSO
By:—V r
Ma Robert D. Corrie
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ATTEST:. ��s of:
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fIIAL
William G. Berg, Jr., Citi/Clefk
RESOLUTION NO. = 9 7.f A
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GENE IONS BUILDING, LLC
LESSE
By:
ATTEST:
RESOLUTION NO.
STATE OF IDAHO,)
ss:
County of Ada,
On this LZ 4' day of N OVF.W1bW, 2000, before me, a Notary Public, personally
appeared Robert D. Corrie and William G. Berg, Jr., known or identified to me to be the Mayor
and the City Clerk, respectively, of the City of Meridian, who executed the instrument or the
persons that executed the instrument on behalf of said City, and acknowledged to me that such
City executed the same.
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County of Ada,
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On this c;�l day of2000, before me, a Notary Public, personally
appeared �. m"14 13 j-4 and , known or
identified to me to be t4w* and respectively, of
Generations Building, LLC, who executed the instrument or the persons that executed the
instrument on behalf of said Generations Building, LLC, and acknowledged to me that such
Generations Building, LLC executed the same.
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