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HomeMy WebLinkAboutAppendix J Parking Lot Lease -draftCOTTONWOOD + IDA FPUD SUBMITTAL || APRIL 2019 APPENDIX J OFF-SITE PARKING SECTION 8 Parking Lot Lease Page 1 PARKING LOT LEASE This Parking Lot Lease (the “Agreement” or “Lease”) is entered into this ____day of _______________, 2019 by and between BANGTAIL PARTNERS, LLC, a California Limited Liability Company (the “Landlord”) and the MILL YARD CONDOMINIUM ASSOCIATION, INC., a Montana non-profit Corporation (the “Tenant”). Landlord and Tenant are sometimes collectively referred to as the “parties”. I. R E C I T A L S A. Landlord is the fee owner of property legally described as follows: SEE EXHIBIT A Also known as 801 and 803 N. Wallace, Bozeman, Montana 59715 and consisting of seventy-two (72) parking spaces and ingress and egress lanes and further described on Exhibit A. the “Property”. B. Tenant owns real property near the Property known as MILL YARD CONDOMINIUM, which consists of six (6) buildings, which may be further subdivided into Sub-Units some of which are residential and some of which are commercial and some of which are a mix of each. C. The commercial units of the MILL YARD CONDOMINIUM, require additional off-site parking for owners, employees, customers and business invitees. D. Tenant is desirous of leasing the Property and Landlord is desirous of leasing the Property to the Tenant for the purpose of operating a parking lot for its commercial units only in accordance with the terms and conditions of this Agreement. II. AGREEMENT In consideration of the mutual covenants, conditions and benefits in this Lease the Landlord and Tenant agree as follows: 1. Term: The term of this Agreement shall begin on _________________, 2019, (the “Commencement Date”) and shall end on May 1, 2044, (the “Term”) unless earlier terminated as otherwise set forth herein. 2. Rent: Tenant agrees to pay Landlord the sum of $__________ (the “Base Rent”) for the first year of this Agreement. The Base Rent will be paid in advance annually with the first payment due on the Commencement Date and on each anniversary of the Commencement Date hereafter during the Term. The Base Rental rate for the first year of this Lease is at a reduced rate while the Tenant’s adjacent property that will be utilizing the parking lot is under construction. The parties agree to adjust the Base Rent to fair market value after the first year and every five (5) years thereafter (“Renewal Rates”). The parties shall meet one hundred days before the expiration date of the first year, or every five-year period, as the case may be, and negotiate an agreement as to what “Fair Market Value” Base Rent shall be. If the parties are unable to agreement as to what the Base Rent rate should be within 10 days, then the parties agree that “Fair Market Value” shall be determined as follows: Within ninety (90) days prior to the expiration of the first year, and every five (5) years thereafter, Landlord and Tenant shall each engage a qualified commercial. Landlord and Tenant each shall be responsible for the fees of the commercial broker selected by it. Landlord and Tenant agree, in advance, to be bound by each period’s Renewal Rate to be calculated as set forth in this subparagraph. Each broker shall have three comparable lease properties that he or she uses to determine the renewal rate. The Renewal Rates shall be the average of the values produced by the two commercial broker reports. The commercial brokers engaged pursuant to this subparagraph shall generate reports calculating the respective Renewal Rate within thirty (30) days of being engaged. Landlord and Tenant shall cooperate to provide the commercial brokers with all documents and information necessary to generate the reports within the agreed-upon time period For clarification, the Base Rental amounts above do not include any Additional Rent Expenses (including but not limited to taxes) described in Paragraphs 4, 6 and 7 below. 3. Permitted Uses: The Property shall be used by the commercial units of Tenant only for purposes of operating a parking lot for the use of the commercial units’ employees, customers, owners and business invittees and for no other use or purpose without the Landlord’s prior written consent, which shall be granted or withheld in Landlord’s sole and subjective discretion. The Tenant is authorized to construct bicycle racks on the Property. The Tenant shall comply with all laws, ordinances, codes and regulations regarding the Property and the permitted uses on the Property. 4. Operating Expenses: Beginning with Lease Commencement and continuing throughout the term of this Lease, Tenant agrees to pay all expenses associated with holding and operating the Property and the parking lot including landscape, maintenance, trash, snow removal, general maintenance, insurance, taxes, assessments and all other charges imposed by law or against the Property as part of Tenant’s obligations hereunder (“Additional Rent”). 5. Maintenance/Repairs: All repairs, maintenance or improvements to the Property shall be the obligation of the Tenant. Tenant is solely responsible for all maintenance of the Property including but not limited to snow removal, striping, resurfacing, signs, lighting, landscaping, trash removal and other maintenance and repairs. Tenant shall keep the Property in a neat and safe condition. The Tenant shall maintain the Property in compliance with all laws, ordinances, or regulations governing the Property and the Tenant’s use of the Property. The Landlord shall have no obligation to make any repairs or improvements to the Property from and after the Commencement Date and throughout the term of the Lease. Tenant shall not keep on or around the Property, for the use, disposal, treatment, transportation, generation, storage or sale, any substance designated as hazardous, dangerous, toxic or harmful, and or which are subject to regulation as hazardous substances by the Federal, State or local law, regulation statute or ordinance (collectively referred to as “hazardous substances”). Without limiting the foregoing Tenant shall with respect to any such hazardous substances comply promptly, timely and completely with all government regulations regarding hazardous substances. In the event the Tenant shall be found to have violated any of the above covenants, any and all costs incurred by Landlord as a result of Tenant’s non-compliance, including Landlord’s attorney’s fees and costs, shall be additional rent and shall be due and payable to Landlord immediately upon demand by Landlord. Without limiting the foregoing, Tenant shall be fully and completely liable to Landlord for and shall indemnify, defend and hold Landlord harmless from and with respect to any and all cleanup costs and any and all other charges, fees, penalties (civil and/or criminal) imposed by any governmental authority with respect to the use, disposal, treatment, transportation, generation and or sale of hazardous substances in or about the Property. 6. Property Taxes. Landlord shall promptly pay all the property taxes accessed against the Property and any other assessments, special improvement districts or other taxes related thereto. As part of its Additional Rent obligations, Tenant shall be responsible for promptly reimbursing Landlord for all such costs. Reimbursement of Landlord’s payment of the property taxes and other assessments shall be due within thirty (30) days of Landlord’s submittal of the same to Tenant. 7. Insurance: Tenant will procure and maintain, at its sole cost and expense, during the term of this Lease, insurance satisfactory to the Landlord insuring the Landlord (a) from liability for damages to persons or property; and (b) for liability arising in whole or in part from actions or inactions by, or on behalf of the Tenant arising out of the rights or obligations of Tenant under this Lease. For the avoidance of doubt, Tenant does not have responsibility to obtain insurance for replacement of the Property in the case of a catastrophic event. Such coverage for catastrophic events is the responsibility of the Landlord in Landlord’s sole discretion. As of the Commencement Date of this Lease and continuing without interruption during the term of this Lease, Tenant shall provide certificates of insurance to Landlord on behalf of Tenant. Tenant shall provide Landlord with a certificate of insurance as proof of general commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy subject to minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 per aggregate. The policy shall name the Landlord, its members, agents and employees as additional insured. The Tenant shall not cancel or change the insurance without first giving Landlord thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in the Best’s Guide and licensed in the state of Montana. 8. Landlord’s Right of Access. The Landlord or the Landlord’s employees or agents shall have the right to enter the Property in a reasonable manner upon reasonable advance notice to Tenant to inspect the Property or to conduct surveys, testing or studies in connection with any engineering, design, financing or permitting activities; provided, however, that no notice will be required in emergency circumstances where it is impractical to provide Tenant with advanced notice. Further, Tenant will be responsible for restriping necessary and any resurfacing. Tenant shall install lighting in the parking lot in such time and location that the Tenant deems necessary and in the Tenant’s discretion to ensure the safety of the Units utilizing the Property. 9. Utilities. Should Tenant desire to have any utilities installed on the Property the Tenant shall pay for the installation and any and all charges related thereto. 10. Tenant Indemnity. Tenant shall indemnify, defend and hold the Landlord harmless from and against any and all claims, actions, liability, costs, expenses and damages of every kind and nature, including reasonable attorney’s fees, arising from (i) the Tenant’s use and occupancy of the Property (ii) any breach or default by the Tenant under the terms or provisions of this Lease, or (iii) any acts, omissions, or negligence on or about the Property by the Tenant, its agents, contractors, employees, members, unit owners, licensees, customers or business invitees, except to the extent caused by Landlord’s negligence. In case of any cause of action or proceeding brought against the Landlord by reason or such claim, the Tenant at Landlord’s option, shall defend such action or proceeding by counsel reasonably satisfactory to Landlord. 11. Tenant Assignment: Tenant shall not assign nor in any manner transfer this Lease, or any interest therein, nor sublet the Property or any part or parts thereof, nor prevent occupancy by anyone, except in connection with the Tenant’s use and occupancy of the Property as a parking lot. 12. Landlord’s Assignment: Landlord may assign its rights, interests and obligations in this Agreement freely and without the consent of Tenant. 13. Events of Default: The following events shall be deemed events of default by Tenant under this Agreement (“Events of Default”): (a) Tenant shall have failed to pay the annual Base Rent or Additional Rent or any other charges provided herein, or any portions thereof, within ten (10) days written notice and opportunity to cure; (b) Tenant shall have failed to comply with any other provisions of this Lease and shall not cure such failure within thirty (30) days after Landlord, by written notice, has informed Tenant of such noncompliance; or (c)Tenant abandons the Property. 14. Notice of Default. In the event of default pursuant to paragraph 13 above, Landlord may, by serving fourteen (14) days of written notice upon Tenant, terminate this Lease in the event that Tenant has not cured the same within the time frame set forth above. 15. Tenant’s Right to Terminate. The Tenant shall have the right to terminate this Lease upon one hundred twenty (120) days prior written notice to Landlord. 16. Landlord’s Right to Terminate. Landlord shall have the right to terminate this Lease upon one hundred twenty (120) days prior written notice to Tenant. 17. Notice. Any and all notices given in connection with this Agreement shall be deemed adequately given only if in writing and addressed to the party for whom such notices are intended at the address set forth below. All notices shall be sent by personal delivery, FedEx or other overnight messenger service, or by first class certified mail, postage prepaid, return receipt requested. A written notice shall be deemed to have been given to the recipient party on the earlier of (a) the date it is delivered to the address required by this Agreement; (b) the date delivery is refused or unclaimed at the address required by this Agreement; or (c)with respect to notices sent by mail, the date as of which the postal service indicates such notice to be undeliverable at the addressed required by this Agreement. Any and all notices referred to in this Agreement, or that either party desires to give to the other, shall be addressed as follows: For Landlord: Bangtail Partners, LLC P.O. Box 10195, Dept. 35 Palo Alto, CA 94303 For the Tenant: Mill Yard Condominium Association, Inc. __________________ __________________ Any party hereto may, by notice given hereunder, designate any further or different addresses to which subsequent notices or other communications shall be sent. 18. Miscellaneous: (a) This Agreement shall be interpreted according to and shall be governed by the laws of the State of Montana (b) Any changes or modifications to this Lease must be in writing and signed by the parties hereto; This Agreement supersedes any previous understandings or agreements between the parties related to the Property. (c) Paragraph headings are for convenience only and in no way define or limit the scope and content of the Lease. (d) No delay or failure by either party to enforce or exercise any rights or remedies hereunder shall constitute a waiver of such right or remedy, nor shall any single or partial exercise of a right or remedy preclude any other or further exercise of rights and remedies. (e) This Agreement may be executed in multiple counterparts and by use of counterpart signature pages, but all such counterparts shall constitute but one and the same Agreement. Signature pages bearing facsimile or scanned signatures shall be effective for purposes of binding the parties to this Lease. (f) This Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided this paragraph shall not permit any assignment contrary to the provisions of this Agreement. (g) In the event of any controversy, claim or dispute relating to this instrument or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney’s fees and costs. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and date herein set forth above. BANGTAIL PARTNERS, LLC By:__________________________ Its: __________________________ MILL YARD CONDOMINIUM ASSOCIATION, INC. By:___________________________ Its: ___________________________ EXHIBIT A LEGAL DESCRIPTION PARCEL 1: Lot 2 of Amended Subdivision Plat of Lot 1 of Amended Subdivision Plat C-23-A16 and Tracts 3 & 4 of Minor Subdivision No. 3, being portions of Block 109 of Northern Pacific Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. [Plat Reference: C-23-A18] PARCEL 2: Lot 3 of Amended Subdivision Plat of Lot 1 of Amended Subdivision Plat C-23-A16 and Tracts 3 & 4 of Minor Subdivision No. 3, being portions of Block 109 of Northern Pacific Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. [Plat Reference: C-23-A18] PARCEL 3: Tract 1 of Minor Subdivision No. 3, being a tract of land located in a portion of Lots 17-23, and in all of Lots 9-16 and Lot 24 of Block 109, Northern Pacific Addition to Bozeman, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. PARCEL 4: Lot 2 of the Amended Subdivision Plat of Lot 1-A of Amended Subdivision Plat C-23-A15 and Lot 1 of the Amended Subdivision Plat C-23-A-6, being portions of Block 109 of Northern Pacific Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. [Plat C-23-A16]