INDUSTRIAL PARK LEASE
THIS LEASE, made and entered into this 1st day of April, 1995, by and
between the City of Xxxxx, a municipal corporation, Oakes, North Dakota, first
party, hereinafter called Lessor, and Lull Industries, Inc. a manufacturing
corporation located in St. Xxxx, Minnesota, hereinafter called Lessee.
I.
PREMISES
The Lessor has agreed to demise and let to the Lessee and Lessee has agreed
to lease and take, and does hereby lease and take from Lessor those certain
premises as same are situated in the City of Xxxxx, Xxxxxx County, North
Dakota, and described as follows:
Lot 1, Oakes Industrial Park, Oakes, North Dakota,
located in Section 21, Township 131 North, Range 59
West:
Lessor does hereby lease, rent and let unto Lessee for the period of time
hereinafter stated and upon the terms and conditions hereinafter set out and
enumerated the premises described hereinabove together with all and singular
improvements, appurtenances, easements, rights of way, rights of ingress and
egress to and from the leased premises.
II.
PURPOSE
Lessee is authorized to use the said premises for manufacturing purposes in
general and for Lull Industrial uses in particular. Lessee shall not, however
use the said premises nor permit the same to be used for any unlawful business
or purposes whatsoever.
Lessee has the right to conduct office and storage
operations related to its manufacturing activities. The property is located
in the Oakes Industrial Park and is zoned for manufacturing purposes.
III.
TERM -- OPTION TO PURCHASE
The term of this lease shall be for a period of five (5) years beginning
with the first day of April, 1995, and ending with the first day of April,
2000. It is further agreed between the Lessor and the Lessee that the
Lessee has at its option, the right to purchase the real property and building
after the initial five (5) year period has expired. Said notice to be given in
writing by the Lessee to the Lessor 30 days prior to the expiration of the
initial five (5) year period and upon receipt of said notice by the Lessor.
If the purchase option is exercised as set out in this lease, and Lessee
exercises the purchase option on or before March 1, 2000, the purchase price
will be $60,000.00. If Lessee purchases the property it will be given a quit
claim deed to the property, which is the same deed the Lessor received from the
Trustee Assignee of Mahto Industries, Inc., a Minnesota Corporation.
Said purchase option may be exercised up until March 1, 2000. After this
date this option is void.
If Lessee determines it will not purchase the property by Xxxxx 0, 0000,
Xxxxxx has the option to extend the term of the lease for an additional
30 months from and after
April 1, 2000 through September 30th, 2002. If Lessee
extends the lease period for the additional 30 months the following terms
apply:
Lessee will pay as cash rent the sum of $2,000.00 per month beginning
April 1, 2000. In addition to the $2,000.00 cash rent, the Lessee will also
pay the real estate taxes associated with the leased premises for the year
2000 and thereafter as long as they continue to lease the property. The
$2,000.00 monthly rental payments will be applied to the purchase of the
building. If Lessee pays $60,000.00 in rent over those 30 months the City
will quit claim deed the property to Lessee. The 30 month lease period begins
April 1, 2000 and ends on September 30, 2002.
IV.
DECORATION AND REMODELING
1. Lessee, its heirs and assigns, shall have the right, and the privilege
is hereby given them at their expense, to decorate and remodel the interior of
the same demised premises from time to time as Lessee shall see fit. Lessee
shall also be given the right to make structual changes to the building and
property subject to Lessor's consent, which consent shall not unreasonably be
witheld.
LESSEE'S INSTALLATIONS
2. Lessee, its heirs and assigns, shall have the right from time to time
to erect and install such machinery and equipment, counters, shelving, light
fixtures, partitions, fixtures and signs in, upon and about said premises as in
the conduct of the
business to be carried on in said premises, and to change
the same in its discretion.
REMOVALS BY LESSEE
3. Lessee shall have the right to remove all his machinery, equipment,
counters, shelving, light fixtures and signs installed and other equipment and
personal property owned by at the end of the term of this lease or any
extension thereof.
RESTORATION OF PREMISES
4. Lessee agrees to restore the leased premises at the end of the term
of this lease, or any extension thereof, to the condition they were in at the
beginning of the term thereof, destruction by fire, reasonable use, ordinary
wear and tear, casualty and the effects of time excepted.
V.
RENTAL
As rental for the use and occupancy of the said premises, Lessee binds
itself, its heirs and assigns to pay said Lessor's rent at the following rate,
which shall be payable on the first day of each month, in advance, and for each
and every month of the term of this lease rent at the following rate:
From April 1, 1995 to April 1, 2000, rent at the rate of
$1.00 per year. Thereafter for a period of 30 months
beginning April 1, 2000 to October 1, 2002, Lessee to
pay rent at the rate of $2,000.00 per month, which applies
towards purchase price of $60,000.00.
VI.
QUIET ENJOYMENT OF LEASED PREMISES AND TITLE
Lessor hereby covenants that it has full authority to execute this lease,
and further agrees that Lessee, upon paying the rent provided for herein and
performing the covenants of this lease, shall have, hold and enjoy the leased
premises during the term hereof. At or before closing, Oakes will provide
documentation of its ownership of the Mahto property identified in the
draft lease.
VII.
REPAIRS
1. Lessee at its sole expense, shall keep in adequate repair and
maintain the exterior and structural portions of said building. Lessee shall
at its sole expense, maintain the heating plant and other utilities connected
with the operation of the manufacturing plant. Lessee, at his expense, shall
maintain and make such interior repairs as it shall deem necessary from time to
time. Lessee shall pay the cost of electricity and heat and cooling used on
the premises by Lessee.
2. Lessee may erect its standard signs on the exterior of the leased
premises and may install and affix banners and other advertisements from time
to time on the interior of the leased portion of the building without consent
of Lessor.
3. Lessee will be responsible for providing adequate hazard and liability
insurance that provides a loss payable clause to the City of Xxxxx, for the
recovery of the $60,000.00 it has invested in the building site being leased.
Lessee shall be deemed to
have provided adequate hazard and liability insurance
hereunder if such insurance covers a value of the building in the amount of
$250,000.00.
4. Lessor and Lessee will jointly proceed to obtain a Phase I
environmental report for the property. Lessor and Lessee shall each pay fifty
percent (50%) of the cost this Phase I environmental report. In the event
this lease is consummated and the Phase I report shows no environmental
contamination, from and after the date of the Phase I report, Lessee shall be
responsible for the environmental condition of the property. Lessee shall not
be responsible for any environmental contamination identified in the Phase I
report to be obtained hereunder.
VIII.
OPTION TO PURCHASE ADDITIONAL INDUSTRIAL PARK PROPERTY
The Lessor acknowledges it owns additional Industrial Park property to the
east and southeast of the leased premises. Lessor hereby agrees to give Lessee
a first option to purchase additional Industrial Park property the Lessor owns
for $2,000.00 an acre. Said additional purchase of Industrial Park property
may be exercised by Lessees only if Lessee purchases the leased premises from
Lessor at the same time or prior to the purchase of additional Industrial Park
Property. The offer for the sale of additional property at the price of
$2,000.00 an acre shall be void after October 1, 2002.
IX.
DESTRUCTION
1. In the event said building or any part thereof shall be destroyed or
damaged by fire or other unavoidable casualty, so that such building cannot
be occupied
and used, then the rents hereby reserved shall be suspended during
such time as said premises are unfit for occupancy and use.
IMPRACTICABLE USAGE
2. Should the leased premises be damaged to such an extent that use of
said premises for the purposes for which leased is impracticable, the rents
provided herein shall cease from the time of said damage until said premises
are restored.
LESSOR'S OPTIONS
3. In the case of the damage or destruction specified and described in
numerical subparagraph 2 immediately hereinabove, Lessor shall have an option
or right to election as to whether Lessor will rebuild and restore said
building and the demises premises. If said Lessor elects not to rebuild or
restore said building and/or said demised premises, he shall notify Lessee to
that effect within 60 days.
TIME OF REPAIR
4. If Lessor elects not to rebuild or restore said premises, then Lessee
shall be given the option to rebuild or restore the premises. If Lessee
decides not to rebuild or restore premises then this lease shall be ended and
terminated as of the date of said loss or destruction, but if Lessor does elect
to restore or rebuild within the time aforesaid, Lessor shall commence in good
faith and repair, rebuilding and restoration of said building and said
premises within a reasonable time from date of such destruction or damage.
Lessor shall have sixty (60) days following the date of said loss or destruction
to advise Lessee, in
writing, of its election to restore or rebuild. Said
restoration and/or rebuilding shall be fully completed and fit for use and
occupancy in not more than 180 days following the event of loss or destruction
or as soon thereafter as practicable under the circumstances. If Lessee elects
to repair the property, it should be entitled to use the insurance proceeds to
do so and have the power to adjust all insurance claims.
X.
LESSEE'S INDEMNITY
Lessee agrees during the term of this lease hereof to indemnify and save
harmless the Lessor from any and all claims for damages to property of for
death or claims of injury to persons or property and from and against any suits
and any orders, decrees or judgments which may be entered because, thereof
arising out of, or caused by Lessee occupancy and use of the demises premises
and not proximately caused by negligence of Lessor, his agents, servants or
Lessor's failure to perform its covenants herein. In this regard, Lessee
agrees that at all times during the terms hereof it will procure, pay for and
keep in force and effect public liability insurance in and with a reputable
insurance company.
XI.
BUILDING INSURANCE
1. At all times during the term hereof Lessee, at its own expense and
sole cost, shall procure, keep in force and maintain full and complete
insurance to cover all the personal property in or about the premises leased
and to insure the building in which they are contained and covering and
insuring the same.
XII.
TAXES
Lessor covenants that at all times herein all advalorem taxes, special
assessments or any other taxes levied or assessed against the leased premises
or any part thereof by reason of the ownership of said property shall be paid
and discharged by Lessor before becoming delinquent.
XIII.
Lessee will, at the termination of this lease, peacefully quit and deliver
the leased premises to Lessor in good condition, with the exception of usual
wear and tear, fire, elements, civil riot, war or other unavoidable casualty.
XIV.
LESSEE'S DEFAULT.
1. Should Lessee be guilty of failure to do what is required of Lessee
under this lease sufficient to entitle Lessor to declare a termination of the
lease, Lessor may give written notice of such default to Lessee at his place of
business at Oakes, North Dakota, and if such default continues for a period of
more than thirty (30) days after such notice is received by Lessee in the event
of any failure to make any payment required of Lessee hereunder, or for a
period of more than thirty (30) days after such notice is received by Lessee
in the event of any other default hereunder, Lessor may declare this lease
terminated.
2. Likewise, any material and substantial breach or default by Lessor
sufficient to entitle Lessee to declare this lease breached or terminated shall
vest in Lessee
the same rights, insofar as they are practicable, under the same
conditions and procedure outlined above for Lessor. All remedies provided for
herein shall be cumulative and shall not restrict or exclude any other remedies
available by law or equity to either of the parties. The laws of the state of
North Dakota shall apply to dispute that may arise between the parties.
XV.
ASSIGNMENT AND SUBLEASING
Lessee shall not assign this lease, or in turn sublease any part of the
leased premises without Lessor's written consent and only for the specific
purposes of continuing the manufacturing operation of Lessee and for no other
purpose.
XVI.
RENTAL PAYMENTS
All rental payments shall be made on the 1st day of April each year from
April 1, 1995 to April 1, 2000 and thereafter on a monthly basis until
October 1, 2002 to the Lessor or its agents in Oakes, North Dakota.
XVII.
HEIRS AND ASSIGNS
The terms conditions and covenants hereof shall be binding alike upon the
heirs, executors administrators and assigns of the respective parties hereto.
All notices to be sent by certified mail. Time is of the essence to this
contract.
XVIII.
LESSOR'S OPTION
If Lull Industries, Inc. purchases the leased premises, it agrees to
execute with the City of Xxxxx, a first option to purchase agreement allowing
the City to repurchase the
building. The first option agreement is contingent
upon Lull Industries selling the building to a non-manufacturing entity.
IN WITNESS WHEREOF, the said Lessor and Lessee have executed and delivered
these presents all the day and year first above written.
City of Xxxxx, N.D. Lull Industries, Inc.
By \S\ XXXX XXXX By \S\ BADGER X. XXXXX
------------------- ----------------------
Xxxx Xxxx, Mayor It's President
City of Xxxxx, N.D.
ATTEST
\S\ XXXXX DAY
------------------------
Xxxxx Day, City Auditor
City of Xxxxx, N.D.
STATE OF NORTH DAKOTA )
) ss.
COUNTY OF XXXXXX )
On this 4th day of April, 1995, before me a notary public, personally
appeared Xxxx Xxxx and Xxxxx Day, the Mayor and City Auditor, City of Oakes,
North Dakota known to be the persons who are described in and who executed
this lease and acknowledged to me that they executed the same.
(SEAL) /S/ XXXXXXX X. XXXXXX
--------------------------
Xxxxxxx X. XxXxxx,
Notary Public
Xxxxxx County, N.D.
My commission expires:
1/22/98
----------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF )
On this 10th day of April, 1995, before me a Notary Public, personally
appeared President of Lull Industries, Inc., known to be the
person who is described in and who executed this lease and acknowledged to
me that he executed the same.
(SEAL) /S/ XXX X. XXXXX
------------------------
Notary Public, MN
My commission expires:
1-31-2000
------------------------
