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2-5-14 First Amendment to Kleiner Park Concession Lease with ExhibitFIRST AMENDMENT TO LEASE AGREEMENT for CONCESSIONS OPERATIONS AT JULIUS M. KLEINER MEMORIAL PARK This FIRST AMENDMENT TO LEASE AGREEMENT for CONCESSIONS OPERATIONS AT JULIUS M. KLEINER MEMORIAL PARK ("First Amendment") is entered into by and between the City of Meridian ("Landlord"), and TV Scoopers LLC, dba Matt's Snack Shack ("Tenant"), and shall be effective this day of February, 2014. WHEREAS, the Parties seek by this First Amendment to modify the May 22, 2012 Lease Agreement for Concessions Operations at Julius M. Kleiner Memorial Park ("May 22, 2012 Lease Agreement"), a copy of which is attached hereto as Exhibit A; NOW, THEREFORE, in consideration of the mutual covenants of the parties, the Parties agree as follows: I. PAYMENT SCHEDULE MODIFIED. Attachment B of the of the May 22, 2012 Lease Agreement shall be modified to read as follows: Attachment B PAYMENT SCHEDULE In consideration for the above -listed concession building lease, Tenant shall pay to City, by May 1 of each year, a total annual lease rate of eight hundred twenty- five dollars ($825.00). II. NO ADDITIONAL PROVISIONS. The Parties agree that except as expressly modified by this First Amendment, all provisions of the original May 22, 2012 Lease Agreement shall remain in full force and effect. No other understanding, whether oral or written, whether made prior to or contemporaneously with this First Amendment shall be deemed to enlarge, limit or otherwise affect the operation of the May 22, 2012 Lease Agreement or this amendment thereto. IN WITNESS WHEREOF, the parties shall cause this First Amendment to be executed by their duly authorized officers to be effective as of the day and year first above written. TENANT: Matt Groll TV Scoopers, LLC, dba Matt's Snack Shack CITY OF MERIDIAN: Attest: Tammy de Weerd Jaycee Holman Mayor City Clerk FIRST AMENDMENT TO SETTLER'S PARK CONCESSION LEASE PAGE 1 EXHIBIT A May 22, 2012 Lease Agreement FIRST AMENDMENT TO SETTLER'S PARK CONCESSION LEASE PAGE 2 LEASE AGREEMENT CONCESSIONS OPERATIONS AT JULIUS M. KLEINER MEMORIAL PARK THIS LEASE AGREEMENT (the "Lease") is entered into by and between The City of Meridian, ("Landlord"), and TV Scoopers LLC, dba Matt's Snack Shack, ("Tenant"), effective the 2-4 day of May, 2012 (the "Effective Date"). In this Lease, Landlord and Tenant may be referred to individually as a"Party" or collectively as the"Parties" as appropriate under the circumstances. 1. BASIC LEASE PROVISIONS. The following is a summary only and reference should always be made to the full Lease provisions and in case of any conflict with the balance of the Lease, the latter shall control. LANDLORD'S ADDRESS FOR NOTICES: TENANT'S ADDRESS FOR NOTICES: The City of Meridian Attention: City Clerk. 33 East Broadway Avenue Meridian, ID 83642 Matt's Snack Shack Attn: Matt Groll 2191 W. Anatole St. Meridian, ID 83646 DESCRIPTION OF PREMISES: Portions of the property commonly known and described as the Concession Building adjacent to the Splash Pad at Julius M. Kleiner Memorial Park, (the `Building" and/or "Premises"), TERM: The term of this Lease shall begin on the first day of operation for the 2012 season (the "Effective Date") and shall end no later than September 30, 2014. OCCUPANCY OF THE PREMISES: Tenant shall be deemed to have occupied the Premises for purposes of commencing the Term as of the Effective Date. RENT COMMENCEMENT DATE: Rent shall commence as of the Effective Date. SCOPE OF SERVICES: See Attachment A RENT: See Attachment B. PERMITTED USE: Tenant may use the Premises for food preparation and food sales, consistent with the requirements and standards established by applicable federal, state, city and health department laws, ordinances, regulations and resolutions. 2. AGREEMENT TO LEASE. In consideration of the payment of Rent, and other sums to be paid by Tenant to Landlord pursuant to this Lease (collectively referred to hereinafter as "Rent") and the performance of the other covenants and agreements in this Lease (Including those set forth in Section 1 and on Attachment A), Landlord leases to Tenant the Premises, together with and subject to all conditions, restrictions, obligations, rights, privileges, easements and appurtenances. Landlord shall have provided Tenant with copies of any easements, and use or restrictive agreements affecting the Building prior to the Effective Date. 3. TERM. The Term shall commence on the Effective Date. 4. RENT AND ADDITIONAL PAYMENTS 4.1. Rent,. Beginning with the Effective Date, Tenant shall pay to Landlord at Landlord's address in Section I of this Lease, Rent according to the Payment Schedule set forth in Attachment B. 4.2 Utilities. This Lease includes the cost and expenses for all utilities in connection with the Premises, including the cost of electricity or other fuels or power sources, water and sewer services, and waste disposal services. Land line telephone service is not available at the premises. 5. USES 5.1. General Use. The Premises shall be used only for the uses set forth in Section 1 ("Permitted Uses") and for no other purpose. Tenant shall not commit or allow to be committed any waste upon the Premises, or any nuisance or other act in or about the Premises that disturbs the quiet enjoyment of Landlord. Tenant, at Tenant's sole expense, shall comply with all laws and regulations relating to its use or occupancy of the Premises. Furthermore, on a daily basis, Tenant shall insure that the area within and immediately adjacent to concession area of the Building is kept clean and free of all debris and litter caused or created by the concession operation. 5.2. Tenant Compliance With ADA. Tenant shall not enter into any change of use of the Premises, whether approved by Landlord or not, if such change in use would result in increased liability of Landlord under the Americans With Disabilities Act of 1990, Public Law No. 101-336,42 USC 12101 et. seq. as it may be amended from time to time (the "ADA"). LEASE AGREEMENT 5.3. No Hazardous Substances. Tenant agrees not to use, store or deposit any substance that is hazardous or dangerous to person, property or the environment (or any similar substance) as now or hereafter defined by or determined pursuant to any applicable state or federal law or regulation in amounts exceeding legally permissible levels ("Hazardous Substance") in, on or about the Premises. 5.4. Insurance Risks. Tenant will not do or permit to be done any act or thing upon the Premises or the Building which would (a) jeopardize or be in conflict with fire insurance policies covering the Building and fixtures and property in the Building; (b) increase the rate of any insurance applicable to the Building to an amount higher than it otherwise would be for the general use of the Building; or (c) subject Landlord to any liability or responsibility for injury to any person or persons or to property by reason of any business or operation being carried on upon the Premises. b. PERSONAL PROPERTY TAXES. If applicable, Tenant shall pay, prior to delinquency, all personal property taxes payable with respect to all Property of Tenant located on the Premises. "Property of Tenant" shall mean and include all personal property of Tenant including inventory, equipment, floor, ceiling and wall coverings, furniture and trade fixtures kept or used on or installed in the Premises and any improvements to the Premises that are owned by and separately assessed to Tenant. 7. ASSIGNMENT AND SUBLETTING. Tenant shall not, without first obtaining the Landlord's consent: (a) sell, assign, mortgage, or transfer this Lease (or any interest therein); (b) sublease all or any portion of the Premises; or (c) allow the use or occupancy of the Premises by anyone other than Tenant. No assignment or sublease shall relieve the Tenant of any liability under this Lease, unless Landlord consents in writing to accept such assignment or sublease as a whole or partial novation. Notwithstanding the foregoing, any transfer of this Lease by merger, consolidation or liquidation of Tenant shall not constitute an assignment hereunder. 8. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Subject to the terms of Section 12, upon expiration of the Term or earlier termination of the Lease, whether by lapse of time or otherwise (including any holdover period, as described herein in Section 18), Tenant at its expense shall: (a) remove the Property of Tenant and the personal property of all persons claiming under Tenant; (b) repair and restore the Premises to a condition as good as received by Tenant from Landlord or as thereafter improved, reasonable wear and tear excepted; and (c) promptly and peacefully surrender the Premises. Any property left on the Premises after the expiration or termination of the Term shall be deemed to have been abandoned and to have become the property of Landlord to dispose of as Landlord deems expedient. Tenant shall be liable for all costs associated with the disposal of such property. Tenant hereby waives all claims for damages that may be caused by Landlord's reentering and taking possession of the Premises or removing and storing the Property of Tenant and other property as herein provided. No such reentry shall be considered or construed to be a forcible entry. Tenant shall indemnify Landlord against any loss or LEASE AGREEMENT 3 liability resulting from delay by Tenant in so surrendering the Premises, including, without limitation, any claims made by a succeeding tenant founded on such delay. 9. CONDITION OF PREMISES; ALTERATIONS. 9.1. Condition of Premises. Landlord has not made any representations or promises whatsoever with respect to the Premises and Tenant is relying on its own investigation and inspection of the Premises and its own determination of the suitability of the Premises, physically and legally, for its intended use. The parties acknowledge the condition of the kitchen equipment owned by the Landlord, as described in Attachment C. The parties further acknowledge that all of such equipment shall be placed in good working order by the Effective Date at Landlord's sole expense. 9.2. Alterations. Tenant shall make no additions, changes, alterations or improvements to the Premises or any electrical, mechanical or fire protection facilities pertaining to the Premises without the prior written consent of Landlord. Tenant shall be responsible for any and all code requirements resulting from any additions, changes, alterations or improvements to the Premises. 10. SERVICES AND MAINTENANCE. 10.1. Operation and Maintenance. Tenant agrees to repair and maintain the equipment listed in Attachment C. During the Term, Landlord shall repair and maintain the structural portions of the Building, including, but not limited to, the electrical systems, roof, and structural integrity of the Building, unless such maintenance or repairs are required as a result, in whole or in part, of the act of, or neglect of any duty by, Tenant, its agents, servants, employees, or invitees, in which event Tenant shall pay to Landlord the reasonable cost of such maintenance or repairs within ten (10) days of Tenant's receipt of Landlord's bill therefor identifying the costs and expenses thereof. 10.2. Entry and Inspection. Landlord at all reasonable times (and at any time in case of emergency) may enter the Premises for the purpose of inspection, cleaning, repairing, altering, maintaining or improving the Premises or the Building subject to Tenant's reasonable security requirements and reasonable client confidentiality requirements. 11. LIENS. Tenant agrees that it will pay or cause to be paid all costs for work done by Tenant on the Premises, and Tenant will keep the Premises free and clear of all mechanics' liens on account of work done by Tenant or persons claiming under Tenant. Tenant agrees to defend, indemnify and save Landlord free and harmless against liability, loss, damage, costs, attorneys' fees, and all other expenses on account of claims of lien of laborers or materialmen or others for work performed or materials or supplies furnished to Tenant or persons claiming under Tenant. LEASE AGREEMENT 4 If Tenant shall desire to contest any claim of lien, it shall furnish Landlord adequate security for the value or in the amount of the claim, plus estimated costs and interest, or a bond of responsible corporate surety in such amount conditioned on the discharge of the lien. If a final judgment establishing the validity or existence of lien for any amount is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in default in paying any charge for which a mechanics' lien claim and suit to foreclose has been filed and Tenant shall not have furnished Landlord adequate security as more particularly provided above, then, in order to protect the Premises and Landlord against such claim of lien, Landlord may (but shall not be required) pay the claim and any costs, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be immediately due and owing from Tenant to Landlord, and Tenant agrees to and shall pay the same. Should any claims of lien be filed against the Premises or any action affecting the Premises be commenced, the Party receiving notice of such lien or action shall forthwith give the other Party written notice thereof. h r►ii{ .3 -TI `► 7t [iii +11>I x1 fl�� i7;�T e�J aIs ' t fi ;itlL li U�1� In the case of damage to the Premises or Building by fire or other casualty, Tenant shall immediately notify Landlord. If the Premises or Building are damaged by fire or any other cause to such extent that the cost of restoration, as reasonably estimated by Landlord, will equal or exceed 10% of the replacement value of the Premises or Building, as the case may be, prior to the occurrence of the damage, or if insurance proceeds sufficient for full restoration are unavailable for any reason, then either Party no later than the 90th day following the damage may give the other Party a notice of that Party's election to terminate this Lease. In the event of such election, this Lease shall be deemed to terminate on the P day after the giving of such notice, and Tenant shall surrender possession of the Premises within a reasonable time thereafter. If the cost of restoration as reasonably estimated by landlord shall amount to less than 10% of said replacement value of the Premises or Building, as the case may be, and insurance proceeds sufficient for restoration are available, or if Landlord does not elect to terminate this Lease under this Section, then Landlord shall restore the Premises with reasonable promptness, subject to delays beyond Landlord's control, and Tenant shall have no right to terminate this Lease. 13. INDEMNIFICATI©N. 13.1. By Tenant. Tenant agrees to indemnify and hold Landlord and Landlord's employees, and agents harmless against all actions, claims, demands, costs, damages or expenses of any kind on account thereof including, without limitation, attorneys' fees and costs of defense, which may be brought or made against Landlord or which Landlord may incur, by reason of Tenant's negligent or willful act or omission. 13.2. By Landlord. Landlord agrees to indemnify and hold Tenant and Tenant's members, directors, officers, employees, and agents harmless against all actions, claims, demands, costs, damages or LEASE AGREEMENT 5 expenses of any kind on account thereof including, without limitation, attorneys' fees and costs of defense, which may be brought or made against Tenant, or which Tenant may pay or incur, by reason of Landlord's negligent or willful act or omission. 14. INSURANCE. 14.1. Comprehensive Liability Insurance. Tenant shall purchase and maintain throughout the term of this lease in force with an insurance carrier acceptable to Landlord a policy of commercial general liability insurance covering the activities of Tenant in connection with the Premises, having a combined single limit of not less than $1,000,000.00 per person and per occurrence and property damage liability insurance with a limit of not less than $1,000,000 per accident or occurrence. The insurance shall insure against any and all liability of Tenant with respect to the Premises and any other portions of the Building used or useable by Tenant. Landlord shall also maintain a Liability Insurance policy to cover the property. The tenant shall cause the Landlord to be named as an additional insured on the tenant's commercial general liability insurance policy. 14.2. Personal Property Insurance. Tenant shall purchase and maintain in force insurance covering all of Tenant's and Landlords furniture and fixtures, machinery, equipment, inventory, and other personal property owned and used in Tenant's business and found in, on, or about the Premises or the Building, and any leasehold improvements to the Premises, if any, in an amount not less than 100% of the full replacement cost. All policy proceeds will be used for the repair or replacement of the property damaged or destroyed regardless of the causes of such damage; however, if this Lease ceases under the provisions of Section 12, Tenant will be entitled to any proceeds resulting from damage to Tenant's furniture and fixtures, machinery, equipment, inventory, and any other personal property. The tenant shall cause the Landlord to be named as an additional insured on the tenant's personal property insurance policy. 14.3. Casualty Insurance. Landlord shall maintain insurance on the Building (excluding any fixtures and items which Tenant is entitled to utilize or required to remove, which insurance Tenant shall provide) against damage by fire and the perils now specified in the most current standard extended coverage endorsement in an amount equal to the replacement cost of the Building as reasonably determined by Landlord, exclusive of the cost of excavations, foundations, and footings. The insurance provided for in this Section may be provided within the coverage of a blanket policy(s) of insurance carried and maintained by Landlord. 14.4. Policy Fortis. All policies of insurance provided for herein shall be issued by insurance companies rated A, Class VI, or better in Best's Key Rating Guide and qualified to do business in the State of Idaho. All insurance required to be furnished by Tenant shall be on forms and with loss payable clauses satisfactory to Landlord naming Landlord as additional insured and copies of policies of such insurance or certificates issued by the insurance company evidencing the existence and amounts of LEASE AGREEMENT 6 such insurance shall be delivered to Landlord. Failure of Tenant to renew or replace such insurance at least thirty (30) days prior to the expiration date of such policy shall constitute a material default under the terms of this Lease. All policies of insurance provided by Tenant may be provided within the coverage of a blanket policy(s) of insurance carried and maintained by Tenant. 145. Failure of Tenant to Insure. In the event the Tenant shall fail to purchase and keep in force any of the insurance required of the Tenant in Section 14, the Landlord has the right to terminate the lease. The Landlord may, but shall not be required to, purchase and keep in force the same, in which event the Tenant shall pay to the Landlord the full amount of the Landlord's expenses with respect thereto, said payment to be made within ten (10) days after demand for such payment by the Landlord. 15. SIGNS. Tenant shall be permitted to place temporary signage on or about the Building subject to Landlord's approval. The tenant shall initiate, obtain approval and comply with all applicable codes. All signs placed by Tenant permitted under this Section shall be at Tenant's sole cost and expense and shall be constructed, designed and located in accordance with all laws, rules, regulations and ordinances of any and all governmental authorities having jurisdiction over such signs. Upon termination of this Lease, Tenant shall remove all of Tenant's signs and sign fascia at Tenant's sole cost and expense and repair any resulting damage to the Premises and the Building in a good and workmanlike manner. 16. CONDEMNATION. 16.1. Entire Taking. If all of the Premises or the Building or such portions of the Building as may be required for the reasonable use of the Premi ses, are taken by eminent domain or conveyance in lieu thereof (a "Taking"), this Lease shall automatically terminate as of the date title vests in the condemning authority and all Rent shall be pro rated to that date. A sale by Landlord under a threat of condemnation or while condemnation proceedings are pending shall be deemed a Taking. 16.2. Partial Taking. In the event of a Taking of a part of the Building, and if Landlord determines that the Building should be restored in such a way as to alter the Premises so as to reduce the floor area of the Premises by more than 15% of such floor area immediately prior to the Taking, either Party may terminate this Lease by notifying the other Party of such termination within sixty (50) days following the date of such Taking. Upon notification, this Lease shall terminate on the date specified in the notice, but no sooner than thirty (30) days from the date of such notice, and the Rent hereunder shall be pro rated as of such date. Subject to the foregoing provisions of this Section 16.2, in case of a Taking of a portion of the Building not required for the reasonable use of the Premises, then this Lease shall continue in full force and effect and there shall be no abatement of Rent. LEASE AGREEMENT 16.3. Awards and Damages. Landlord reserves all rights to damages to the Premises and the Building for any Taking and Tenant shall make no claim against Landlord or the condemning authority for damages for termination of the leasehold interest. Tenant shall have the right however, to claim and recover from the condemning authority compensation for any loss to which Tenant may be entitled for Tenant's moving expenses, business interruption or Taking of Property of Tenant (not including Tenant's leasehold interest), to the extent that such loss is awarded separately in the eminent domain proceeding and not out of or as part of the damages recoverable by Landlord. 17. DEFAULT; REMEDIES. 17.1. Events of Default. The occurrence of any of the following events shall constitute a material default and breach of this Lease ("Event of Default") by Tenant: 17.1.1. Tenant fails to pay any installment of Rent within ten (10) days following its due date without the requirement of written notice or demand; 17.1.2. Tenant fails to pay any other sum payable under this Lease within ten (10) days after written demand therefor is delivered to Tenant; 17.1.3. The default by Tenant in the performance of any of Tenant's covenants, agreements or obligations hereunder (excluding a default in the payment of Rent or other monies due) which continues for thirty (30) days after written notice thereof is delivered to Tenant by Landlord; provided if the alleged default cannot be cured within a thirty (30) day period, then Tenant will not be deemed to be in default if Tenant commences to cure the Event of Default within the thirty (30) day period and proceeds diligently to complete such cure; 17.1.4. A general assignment by Tenant for the benefit of creditors; 17.1.5. The filing of a voluntary petition in bankruptcy, the filing for an arrangement, or the filing of a voluntary or involuntary petition for reorganization or the filing of an involuntary petition by Tenant's creditors which remains undischarged for a period of sixty (60) days; or 17.1.6. Tenant is the subject of a receivership, attachment or other judicial seizure of substantially all of Tenant's assets on the Premises, such attachment or other seizure remaining undismissed or undischarged for a period of sixty (60) days after the levy thereon or 17.1.7. Tenant fails to obtain and maintain the insurance described in Section 14. 17.1.8. If Landlord determines that a life and/or safety situation exists due to the Tenant's acts and/or omissions excluding a default in the payment of rent or other monies due to the Landlord. LEASE AGREEMENT 17.2. Landlord's Remedies. In the event of an Event of Default by Tenant, Landlord shall have all rights and remedies available at law or in equity. The rights, privileges, elections and remedies of Landlord set forth in this Lease or allowed by law or equity are cumulative and the enforcement by Landlord of a specific remedy shall not constitute an election of remedies and/or a waiver of other available remedies. In the event of a material default, Landlord's remedies shall include, but not be limited to the following: 17.2.1. Terminate this Lease by written notice on the earliest date permitted by law or on any later date specified in such notice, in which case Tenant's right to possession of the Premises will cease and this Lease will be terminated, except as to Tenant's liability; 17.2.2. Without further demand or notice, reenter and take possession of the Premises, repossess the same, expel Tenant and those claiming through or under Tenant, and remove the effects of both or either, without being liable for prosecution, damage or otherwise and without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of Rent or other amounts payable under this Lease or as a result of any preceding Event of Default; 17.2.3. Without further demand or notice, cure any Event of Default, and charge Tenant as additional rent the cost of effecting such cure, including without limitation reasonable attorneys' fees and interest on the amount so advanced at 10% per annum; 17.2.4. Without further demand or notice, accelerate the payment of all Rent and other monetary sums payable by Tenant for the balance of the Term and upon any such election such sums shall be immediately due and payable in full. Should Landlord elect to reenter as provided in Section 17.2.2 or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part of the Premises in Landlord's or Tenant's name, but for the account of Tenant, on commercially reasonable terms and conditions as Landlord, in its reasonable discretion may so choose. Landlord will in no way be responsible or liable for any failure to relet the Premises, or any part of the Premises, or for any failure to collect any rent due upon such reletting. No such reentry or taking possession of the Premises by Landlord will be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant. No written notice from Landlord under this Section or under a forcible or unlawful entry and detainer statute or similar law will constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such reentry or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in which event this Lease will terminate as specified in such notice. If Tenant should abandon, vacate or surrender the Premises or be dispossessed by process of law, any personal property left upon the Premises may be deemed abandoned, or, at the option of Landlord, on such reentry Landlord may take possession of any and all furniture, fixtures or chattels in or on the Premises and sell the same or dispose of at tenant's expense. LEASE AGREEMENT 17.3. Landlord's Default. The occurrence of any of the following events shall constitute an event of default by Landlord; 17.3.1. The default by Landlord in the performance of any of Landlord's covenants, agreements or obligations under the Lease which continues for thirty (30) days after written notice thereof is delivered to Landlord by Tenant; provided if the alleged default cannot be cured within a thirty (30) day period, then Landlord will not be deemed to be in default if Landlord commences to cure the event of default within the thirty (30) day period and proceeds diligently to complete such cure. 18. NO HOLDING OVER. Tenant will, at the termination of this Lease by lapse of time or otherwise, yield up possession to Landlord. If Tenant remains in possession of all or any part of the Premises after the expiration of the Term, with or without the express or implied consent of Landlord, such tenancy shall be from month to month only, and not a renewal hereof or an extension for any further term, and in such case Rent and all other monetary sums due hereunder, shall be payable in the amount and at the time specified in this Lease and such month to month tenancy shall be subject to every other term, covenant and agreement contained herein. Landlord expressly reserves the right to require Tenant to surrender possession of the Premises upon the expiration of the Term of this Lease or upon the earlier termination thereof, the right to re-enter the Premises, and the right to assert any remedy at law or in equity to evict Tenant and collect damages in connection with any such holding over. 19. PARKING. Tenant, its agents, employees, guests and invitees, shall have the non-exclusive right to use the parking areas owned or controlled by Landlord. 20. GENERAL PROVISIONS. 20.1. Notices. All notices under this Lease shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, or sent by facsimile or overnight courier (i.e. Federal Express) to Landlord and to Tenant at the addresses set forth in Section 1, or to such other addresses as may from time to time be designated by any such Party in writing. Notices mailed as aforesaid shall be deemed given 3 days after the date of such mailing or upon the date of receipt if delivery is made in person or via overnight courier. Notices given by facsimile shall be deemed given when confirmed by telephone. 20.2. Costs and Attorneys' Fees. In the event of any controversy, claim or action being filed or instituted between the Parties to enforce the terms and conditions of this Lease, or arising from the breach of any provision hereof, the prevailing Party will be entitled to receive from the other Party all costs, damages, and expenses, including reasonable attorneys' fees including fees on appeal and for bankruptcy LEASE AGREEMENT 10 proceedings, incurred by the prevailing Party, whether or not such controversy or claim is litigated or prosecuted to judgment. The prevailing Party will be that Party who was awarded judgment as a result of trial or arbitration, or who receives a payment of money from the other Party in settlement of claims asserted by that Party. 28.3. Mediation Any disputes between the Parties in connection with the rights and obligations under this Lease, shall be settled by mediation upon the request of any Party and the mutual agreement of both parties. Mediation shall be a required precursor to litigation filed regarding this Agreement. All costs associated with Mediation shall be shared equally by the parties. 28.4. Estoppel Certificate. Landlord or Tenant shall at any time upon not less than ten (10) days prior written notice from the respective Landlord or Tenant execute, acknowledge and deliver to Landlord or Tenant as necessary a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to Landlord or Tenant's respective knowledge, any uncured defaults on the part of Landlord or Tenant hereunder, or specifying such defaults if they are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrance of the Premises or the Building. Tenant's failure to deliver such statement within such time shall be conclusive upon Tenant (i) that this Lease is in full force and effect, without modification except as may be represented by Landlord, (ii) that there are no uncured defaults in Landlord's performance. 20.5. Nonwaiver. Waiver by Landlord of any term, covenant or condition herein contained or any breach thereof shall not be deemed to be a waiver of such term, covenant, or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of any Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. 20.6. Warranties of Tenant. Tenant warrants and represents to Landlord, for the express benefit of Landlord, that (a) Tenant has undertaken a complete and independent evaluation of the risks inherent in the execution of this Lease and the operation of the Premises for its use permitted hereby, and that, based upon said independent evaluation, Tenant has elected to enter into this Lease and hereby assumes all risks with respect thereto: (b) no oral or written inducement(s) to execute this Lease have been made to Tenant; (c) in entering into this Lease, Tenant relies upon no statement, fact, promise or representation (whether express or implied, written or oral) not specifically set forth herein in writing; and (d) any statement, fact, promise or representation not expressly contained herein shall in LEASE AGREEMENT 1 I no way bind Landlord, and Tenant hereby waives any right, rescission and all claims for damages by reason of any statement, fact, promise, representation, if any, not contained in this Lease. On the basis of the foregoing warranties and representations of Tenant, Landlord is willing to enter into this Lease. In the event any of such warranties or representations of Tenant herein contained shall be inaccurate or untrue Landlord may, in addition to all other rights of Landlord at law or equity, terminate the Lease at any time thereafter upon written notice to Tenant. 20.7. Nondiscrimination and Nonsegregation. Each Party covenants by and for itself and its heirs, executors, administrators and assigns, and all persons claiming under or through such Party that this Lease is made and accepted upon and subject to the following conditions; That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises, nor shall any person claiming under or through that Party, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendors in the Premises. 20.8. Miscellaneous. Titles or captions to sections of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. All Attachments to this Lease are incorporated into, and become a part of, the Lease upon attachment thereto. Subject to the restrictions on assignment incorporated in Section 7, all of the covenants, agreements, terms and conditions contained in this Lease shall inure to and be binding upon Landlord and Tenant and their respective heirs, executors, administrators, successors and permitted assigns. This Lease contains all covenants and agreements between Landlord and Tenant relating in any manner to the leasing, use and occupancy of the Premises and Tenant's use of the Building and other matters set forth in this Lease. No prior agreements or understandings pertaining to the same shall be valid or of any force or effect and the covenants and agreements of this Lease shall not be altered, modified or added to except in writing signed by Landlord and Tenant. Any provision of this Lease that shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof and the remaining provisions hereof shall remain in full force and effect. Time periods for performance under any provisions of this Lease shall be extended for periods of time during which performance is prevented due to circumstances beyond either Party's control, except for Tenant's obligations to pay Rent hereunder, including, without limitation, strikes, embargoes, shortages of labor or materials, governmental regulations, acts of God, war or other strife. This Lease shall be governed by and construed in accordance with the laws of the State of Idaho. Time is of the essence of this Lease. This Lease may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be one and the same agreement. The word "day" means "calendar day" herein unless otherwise expressly stated and the computation of time shall include all Saturdays, Sundays and holidays for purposes of determining time periods specified herein. LEASE AGREEMENT 12 20.9 Broker Each Party represents and warrants to the other Party ("Non -breaching Party") that it has not engaged any broker, finder or other person (except as disclosed in this Section) who would be entitled to any commission or fees in respect to the negotiation, execution or delivery of this Lease and each Party shall indemnify and hold the Non -breaching Party harmless from and against any loss, cost, liability or expense incurred by the Non -breaching Party as a result of any claim asserted by any such broker, finder or other person based on any arrangements or agreements made or alleged to have been made by or on behalf of the Party. IN WITNESS WHEREOF, the Landlord and the Tenant have entered into this Lease effective as of the Effective Date hereof. LANDLORD: THE CITY OF MERIDIAN ATTEST: By Tammy aeerd, Mayor �GO0O�2ED AUCU\ ST A �+ City of Jaycee Holman, City Clerk �s� SEAL rff '� Ike iAE 0 TENANT: TV Scoopers, dba Malt's Snack Shack By 4 Matt Groll LEASE AGREEMENT 13 Attachment A SCOPE OF SERVICES A. Regular Weekday and Weekend Concession Building Services (Julius M. Kleiner Memorial Park): 1. Minimum dates of operation each year during the term of this agreement shall coincide with the dates of operation for the splash pad at Julius M. Kleiner Memorial Park. As opening and closing dates of the splash pad may vary based on weather, Landlord will communicate to Tenant the planned opening and closed dates each year. Typical season dates are from the Friday before Memorial Day until the middle of September. 2. Minimum times of operation are 11:00am-7:OOpm, Monday through Sunday during days when the splash pad is open. 3. Additional dates and/or times of operation may be requested by Landlord based on activities scheduled at the park. 3. Tenant may choose to stay open during dates and times that exceed the minimums listed above. Tenant is required to seek approval of the Recreation Coordinator for operating hours and maintain a consistent schedule throughout the season. The park opens at sunrise and closes at sunset unless otherwise ordered or allowed by the Parks and Recreation Director in writing. 4. Exceptions to the minimum dates and hours of operation may be allowed in the event of adverse weather or other prohibitive conditions. B. Additional Concession Building Requirements. 1. Tenant is required to have swim diapers available for sale at all times during open hours. Swim diapers must be sold for $1 each. 2. Tenant is required to have at least 2 bocce ball sets, one volleyball, and 2 basketballs available for rent at all times during open hours. 3. Tenant must have or obtain all necessary Central District Health Department permit. 4. Tenant must provide a copy of their current liability insurance policy with the City of Meridian named as additionally insured. 5. Tenant must provide fingerprints and undergo a criminal background check. 6. If employing one or more persons to work in the concessions building, Tenant must provide worker's compensation insurance and require all employees to undergo a criminal background check. LEASE AGREEMENT 1& Attachment B PAYMENT SCHEDULE A. Fees for the above listed concession building services shall be paid to the City, upon verification of sales, on a monthly basis no later than the 10'' of the following month. Copies of daily cash register receipts must be submitted weekly and will be used to verify monthly totals. B. Tenant shall keep a full and accurate set of books, adequately showing gross receipts received during each month for all operations associated with this Lease Agreement and shall with reasonable notice, allow Landlord to inspect said books and receipt records. TASK DESCRIPTION AMOUNT A. Regular Weekday and Weekend Concession Building Services 30% of gross sales LEASE AGREEMENT 15 Attachment C LIST OF LANDLORD'S FIXTURES 1. Three compartment sink 2. Handwashing Sink 3. Mop Sink LEASE AGREEMENT 16