Resolution 5032 - Authorizing Purchase and Sale Agreement - Wells Fargo BankRESOLUTION NO.5032
A RESOLUTION TO AUTHORIZE THE EXECUTION OF A PURCHASE AND SALE
AGREEMENT WITH WELLS FARGO BANK FOR THE PURCHASE BY THE CITY OF
KALISPELL OF THOSE FACILITIES LOCATED AT 201 FIRST AVENUE EAST,
KALISPELL, MONTANA ALONG WITH THE APPURTENANCES THERETO.
WHEREAS, the Kalispell City Council recognizes the need of the City to acquire additional space to
house its City offices; and
WHEREAS, the facility currently housing the Wells Fargo Bank. at 201 First Avenue East, Kalispell,
located within one block of current City Hall, has become available for sale and has been
offered to the City of Kalispell for the sale price of $1.,100,000; below its October 2004
appraised value of $1,400,000; and
WHEREAS, an investigation of the Wells Fargo building shows it to be a well -maintained facility
containing more than 19,000 square feet of usable space on two floors that comes with 38
parking spaces; and
WHEREAS, the acquisition of the Wells Fargo facility by the City will enable the City to house all of
its departments within that facility and current City Hall into the next decade and thereby
allow the City to eliminate its leasehold costs as well as improve the access needs of the
public to City services; and
WHEREAS, as a part of the negotiations with wells Fargo Bank for the purchase of its facility, the
City will agree to lease the facility, at market rate, back to Wells Fargo for a period of up
to one year to allow it the necessary time to construct a new banking facility within the
City for its use.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL
AS FOLLOWS:
SECTION I. The City is hereby authorized to enter into the Purchase and Sale Agreement,
attached hereto as Exhibit "A", with the Wells Fargo Bank for the purchase of its
facilities at 201 First Avenue East, Kalispell, Montana.
SECTION II. The City is hereby authorized to enter into the Leasehold Agreement, attached
hereto as Exhibit "B", with wells Fargo Bank for the leaseback to wells Fargo
Bank of its facilities at 201 First Avenue East, Kalispell, Montana for a period of
UP to one year.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL, THIS 18th DAY OF JULY 200 .
amela B. Kennedf"�
ATTEST: Mayor
Theresa White
City Clerk
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT of PURCHASE AND SALE (this "Agreement"), dated as of
July 22, 2005, is made between WELLS FARGO BANK, N.A., a national banking
association ("Seller"), and CITE( of KALISPELL, MONTANA, a municipal corporation
("Buyer"), who for valuable consideration received, agree as follows:
1. Definitions.
For the purposes of this Agreement the following terms shall be defined as follows:
1.1 Bill of Sale. The term "Bill of Sale" shall mean that certain Bill of Sale, the
form of which is attached hereto as Exhibit D, pursuant to which Seller shall convey to
Buyer the furniture, fixtures, equipment and other personal property comprising a park of
the Property.
1.2 Broker. None.
1.3 Buyer Inspection. The term "Buyer Inspection" shall have the meaning given
thereto in Section 5.2, below.
1.4 Closing; Close of Escrow; Closing Date. The "Closing" or the "Close of
Escrow" shall mean the consummation of the purchase and sale of the Property in
accordance with this Agreement, as evidenced by the recording of the Deed in the
official records of the county in which the Property is located. closing and Close of
Escrow are terms used interchangeably in this Agreement. The "Closing Date" shall be
the date that Close of Escrow occurs, which shall not be later than September 18, 2005.
The Closing Date may not be extended beyond September 18, 2005 unless agreed to in
writing by Seller in its sole and absolute discretion.
1.5 Deed. The term "Deed" shall have the meaning given thereto in Section 7,
below.
1.6 Due Diligence Materials. The term "Due Diligence Materials" means the
reports, surveys and other materials listed on Exhibit C, attached hereto.
1.7 Due Diligence Period. The "Due Diligence Period" is the period commencing
on the Effective Date and ending on July 28, 2005, during which Buyer must complete
its due diligence as described in Section 5, below.
1.8 Effective Date. The "Effective Date" is the date set forth below the
signature(s) of the party which is the last to sign this Agreement.
1.9 Environmental Law. The term "Environmental Law" means any law, statute,
ordinance or regulation pertaining to health, industrial hygiene or the environment
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including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, and the Resources conservation
and Recovery Act of 1976, as amended.
1.10 Escrow. The term "Escrow" shall have the meaning given thereto in Section
11, below.
1.11 Escrow Holder. The "Escrow Holder" shall be a title insurance company or
similar company experienced in handling real estate escrows in the Kalispell area that is
mutually acceptable to the parties.
1.12 Exhibits. The term "Exhibits" means the following, each of which is attached
hereto and incorporated herein by this reference:
Exhibit A - Legal Description of Real Property
Exhibit B - Form of Deed
Exhibit C - Due Diligence Materials
Exhibit D - Form of Bill of Sale
Exhibit E - Form of WFB Branch Lease
1.13 Hazardous Substance. The term "Hazardous Substance" means any
substance, material or waste which is or becomes designated, classified or regulated as
being "toxic" or "hazardous" or a "pollutant" or which is or becomes similarly designated,
classified or regulated, under any Environmental Law, including asbestos, petroleum
and petroleum products.
1.14 Non -Foreign certificate. The term "Non -Foreign Certificate" shall have the
meaning given thereto in Section 9.2.1.3, below.
1.15 Notices. The term "Notices" means all notices or other communications
required or permitted hereunder, which Notices shall be sent as follows to:
Seller: Wells Fargo Bank, N.A.
Corporate Properties Group
633 Folsom Street, 6th Floor
San Francisco, California 94107
Attn: Mr. Jeff Rader
with a copy to:
MBV LAW LLP
855 Front Street
San Francisco, California 94111
Attn: Christopher Arnold, Esq.
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Buyer: CITY OF KALISPELL
P.O. Box 1997
312 First Avenue East
Kalispell, MT 59903-1997
Attn: City Manager
1.16 Permitted Exceptions. The term "Permitted Exceptions" shall have the
meaning given thereto in Section 8.2.1.2, below.
1.17 Property. The term "Property" shall have the meaning given thereto in
Section 2, below.
1.18 Proration Date. The term "Proration Date" shall have the meaning given
thereto in Section 9.5.2, below.
1.19 Purchase Price. The "Purchase Price" for the Property is One Million One
Hundred Thousand Dollars ($1,100,000.00).
1.20 Real Estate compensation. The term "Real Estate compensation" shall
have the meaning given thereto in Section 10, below.
1.21 Real Property. The term "Real Property" means the land and improvements
generally described as 201 First Avenue East, Kalispell, MT. The Real Property is more
particularly described in Exhibit A, attached hereto.
1.22 Seller's Account. The term "Seller's Account" means the account to which
the Purchase Price (less Seller's share of closing costs and prorations) shall be wired
pursuant to written instructions to be furnished to Escrow Holder by Seller prior to Close
of Escrow.
1.23 Termination Notice. The term "Termination Notice" shall have the meaning
given thereto in Section 5.3, below.
1.24 Title Company. The "Title Company" shall be a title insurance company in
the Kalispell area that is mutually acceptable to the parties.
1.25 Title Policy. The term "Title Policy" shall have the meaning given thereto in
Section 7, below.
1.20 WFB Branch Lease. The term "WFB Branch Lease" shall mean the Lease of
Seller's bank branch premises, between Buyer, as lessor, and Seller, as lessee, the
form of which is attached hereto as Exhibit E.
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2. Purchase and Sale of Pro e .
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller on the
terms hereinafter set forth all of Seller's right, title and interest in the Real Property,
including all improvements located on the Real Property, together with all rights and
appurtenances pertaining thereto (collectively, the "Property").
3. Purchase Price.
Not later than two (2) days immediately prior to close of Escrow, Buyer shall
deposit with Escrow Holder, by immediately available federal wire transfer or cashier's
check, the Purchase Price of One Million One Hundred Thousand Dollars
($1,100,000-00), plus or minus the closing adjustments and prorations described in
Section 9.5.
4. Remedies.
4.1 SELLER DEFAULT. IF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT DOES NOT CLOSE SOLELY AS A RESULT OF A DEFAULT BY
SELLER, BUYER'S SOLE REMEDY SHALL BE SPECIFIC PERFORMANCE OF THIS
AGREEMENT AGAINST SELLER, WITH BUYER HEREBY WAIVING ANY OTHER
REMEDY WHICH BUYER MAY HAVE AGAINST SELLER.
Buyer:
4.2 BUYER DEFAULT. IF THE TRANSACTION CONTEMPLATED
HEREUNDER IS NOT CONSUMMATED DUE TO A DEFAULT BY BUYER, SELLER
MAY PURSUE ALL RIGHTS AND REMEDIES AVAILABLE TO IT IN LAW AND IN
EQUITY, AND IN ADDITION, SELLER MAY IMMEDIATELY TERMINATE THIS
AGREEMENT BY WRITTEN NOTICE TO BUYER AND WITHOUT FURTHER
OBLIGATION TO BUYER.
5. Due Diligence.
5.1 Due Diligence Materials. To the extent Seller has not already done so, Seller
shall make available to Buyer the Due Diligence Materials for use by Buyer in
connection with Buyer's investigation of the Property. Notwithstanding the foregoing,
Seller shall not make available to Buyer (i) any appraisals of the Real Property, (ii) any
financial projections relating to the Real Property, (Iii) correspondence relating to routine
management and maintenance matters, and (iv) any reports or studies prepared or
commissioned by Seller concerning the extent to which the improvements located on
the Real Property are in compliance with the Americans With Disabilities Act. Seller
makes no representation or warranty of any kind with respect to the Due Diligence
Materials, including their accuracy, completeness or suitability for reliance thereon by
Buyer.
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5.2 Buyer Inspections. During the Due Diligence Period, provided that Buyer is
not in default hereunder, Buyer shall have the right to enter and inspect the Real
Property (each, a "Buyer Inspection") pursuant to the following terms and conditions:
5.2.1 Expenses. Each Buyer Inspection shall be at Buyer's sole cost and
expense.
5.2.2 License; Insurance. The persons or entities performing the Buyer
Inspection shall be properly licensed and qualified, shall have obtained all of the
appropriate permits for performing relevant tests and shall have delivered to Seller, prior
to performing any tests or entering the Real Property, evidence of proper and adequate
insurance reasonably satisfactory to Seller. In addition, if a Buyer Inspection requires
more than a visual inspection of the Real Property, then before undertaking such Buyer
Inspection, Buyer shall arrange for Seller to be named as an additional insured on
Buyer's commercial public liability insurance policy covering liability to property or
persons for Buyer's activities on or about the Real Property in an amount not less than
Two Million Dollars ($2,000,000.00).
5.2.3 No Interference. Buyer and its representatives, agents or designees
shall not interfere with Seller's or its tenants' business operations on, or use of, the Real
Property.
5.2.4 Liens. Buyer shall not cause or suffer any lien or other encumbrance to
be recorded against the Real Property, and shall promptly cause any lien or other
encumbrance caused or suffered by Buyer [including mechanics' liens arising out of
Buyer's activities under this Section 5.2] to be immediately discharged or bonded over,
to Seller's satisfaction.
5.2.5 Restoration. If any portion of the Real Property is damaged due to
Buyer's entry on the Real Property, Buyer shall, at its sole cost and expense,
immediately repair and restore the Real Property to the same condition the Real
Property was in immediately prior to the date the damage occurred.
5.2.5 indemnity. Buyer shall indemnify, protect and defend (by counsel
reasonably acceptable to Seller) and hold harmless Seller for, from and against any and
all claims, damages, costs, liabilities and losses and expenses arising out of any entry,
investigations, inspections, tests and other activities undertaken by Buyer or its agents,
designees or representatives, including (A) reasonable attorneys' fees and expenses
and other reasonable costs and expenses incurred by Seller in connection with
investigating or defending any such matters, (B) any and all costs or expenses incurred
by Seller resulting from or arising out of the aggravation of physical defects or
conditions regarding hazardous, toxic or contaminated substances or materials and (C)
any and all costs or expenses incurred by Seller in defending, discharging or bonding
over any liens or encumbrances against the Property resulting from Buyer's activities
with respect thereto. This indemnity provision shall survive Close of Escrow or any
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earlier termination of this Agreement and shall not be reduced or impaired by Seller's
receipt of any sums as liquidated damages hereunder.
5.2.7 Confidential. Each Buyer Inspection, and the results thereof, shall
remain confidential pursuant to the terms of Section 12.16.
5.3 Disapproval of Due Diligence Materials or Buyer Inspections. Buyer shall
have the right, at any time during the Due Diligence Period, to reasonably disapprove
the results of (i) Buyer's review of the Due Diligence Materials, or (ii) the Buyer
Inspections of the Real Property, or (Iii) Buyer's investigation and review of all other
physical, environmental, legal and any other matters relating to the Property as Buyer
may elect to investigate and review (including, without limitation, Phase II ground soils
testing, the suitability of the Property for prospective tenants; the availability of permits,
variances and other governmental approvals for any demolition and improvements
contemplated by Buyer; the condition of building roof, HVAC equipment and pest
infestation; and tax and utility costs). If Buyer disapproves of any of the foregoing,
Buyer may terminate this Agreement by providing Seller and Escrow Holder with written
notice thereof (a "Termination Notice") on or prior to the last day of the Due Diligence
Period. If Buyer delivers a Termination Notice to Seller and Escrow Holder during the
Due Diligence Period, then (a) this Agreement, and all of the obligations, rights and
liabilities of the parties to each other hereunder (except for Buyer's indemnification
obligations under Section 5.2.5, Buyer's restoration obligations under Section 5.2.5, and
the parties" confidentiality obligations under Section 12.15), shall terminate and be of no
further effect, and (b) Buyer shall immediately return to Seller the Due Diligence
Materials and, if requested by Seller, deliver to Seller any written reports, tests or
memoranda in Buyer's possession relating to the Buyer Inspections of the Real Property
(including the results of Buyer's Phase II investigation).
5.4 Title. If Buyer objects to any exceptions to title shown in the preliminary
report referred to in Section 8.2. 1.2, then unless such exception is of the type described
in clauses (i) through (v) of Section 8.2.2.1, Buyer may deliver a Termination Notice to
Seller prior to the expiration of the Due Diligence Period that will be effective unless
Seller commits to Buyer, before ten (10) days following expiration of the Due Diligence
Period, to removing the exceptions or defects objected to by Buyer at Close of Escrow.
5.5 City Council Approval. If the City Council of Kalispell, Montana, fails to pass
a resolution or other authorizing directive committing Buyer to the purchase of the
Property in accordance with this Agreement, Buyer may deliver a Termination Notice to
Seller prior to the expiration of the Due Diligence Period.
5.5 Effect of Failure to Deliver Termination Notice. If Buyer fails to provide Seller
and Escrow Holder with a Termination Notice prior to the expiration of the Due Diligence
Period, then (i) Buyer shall be deemed to have approved the results of Buyer's review of
the Due Diligence Materials and the Buyer Inspections of the Real Property and waived
Buyer's right to terminate this Agreement due to a failure of the conditions precedent
described in Section 8.2.1 of this Agreement, and (ii) the parties shall proceed with
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Close of Escrow in accordance with the terms of this Agreement. If Buyer delivers a
Termination Notice that is effective only if Seller fails to commit to Buyer to removing the
exceptions or defects objected to by Buyer at close of Escrow, then such conditional
Termination Notice shall be treated as null and void if Seller does in fact commit, in a
timely fashion, to removing the exceptions or defects objected to by Buyer. In any
event, the parties' participation in close of Escrow shall be deemed a waiver of (i) each
party's ability to terminate this Agreement on the basis of any failure of any conditions
precedent and (ii) each party's right to seek damages from the other party for the breach
of any representations, warranty or covenant of which the non -breaching party had
actual knowledge prior to close of Escrow.
6. Status.
6.1 As Is Purchase. Buyer shall examine, inspect and conduct its own
investigation of all matters with respect to taxes, bonds, environmental conditions, the
suitability of the Property for prospective tenants, the availability of permits, variances
and other governmental approvals for any demolition and improvements contemplated
by Buyer, the condition of building roofs, HVAC equipment and pest infestation, tax and
utility costs, permissible uses, title, zoning, covenants, conditions and restrictions and all
other matters which, in Buyer's judgment, bear upon the value and suitability of the
Property for Buyer's purposes. Except as otherwise specifically stated in Section 11.2,
Seller hereby specifically disclaims any warranty, guaranty or representation, oral or
written, past, present or future, of, as to or concerning: (i) the nature and condition of
the Property, including the water, soil, geology, environmental conditions (including the
presence or absence of any Hazardous Substance), and the suitability thereof for any
and all activities and uses which Buyer may elect to conduct thereon; (11) the nature and
extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation,
condition or otherwise; (iii) the compliance of the Property or its operation with any laws,
ordinances or regulations of any government or other body (including the Americans
With Disabilities Act); or (iv) the availability of permits, variances and other
governmental approvals for any demolition and improvements contemplated by Buyer.
The sale of the Property as provided for herein is made on an "AS IS" basis, and Buyer
expressly acknowledges that, in consideration of the agreements of Seller herein,
except as otherwise expressly specified in this Agreement, SELLER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAVA, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY
OF CONDITION, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY.
6.2 Release. Except for any breach by Seller of any representation or warranty
of Seller contained in Section 11.2, Buyer, for itself and its successors and assigns,
hereby releases and for -ever discharges Seller and its successors and assigns from,
and waives any right to proceed against Seller and its successors or assigns for, any
and all cost, expense, claim (including claims for rescission or reformation), liabilities
and demands (including reasonable attorneys' and consultants' fees) at law or in equity,
whether known or unknown, arising out of the physical, environmental, economic, legal
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or other condition of the Property, including, without limitation, any claims for
contribution or cost recovery pursuant to any Environmental Law, which Buyer or
Buyer's successors or assigns has or may have in the future. Buyer hereby specifically
acknowledges that Buyer has carefully reviewed this Section, and discussed its import
with legal counsel, is fully aware of its consequences, and that the provisions of this
Section are a material part of this Agreement.
Buyer ( grees.
6.3 Indemnity.
6.3.1 Seller's Indemnity. Seller shall indemnify, protect and defend by
counsel reasonably acceptable to Buyer and hold harmless Buyer from and against any
and all claims, damages, losses, costs, expenses and liabilities (including all reasonable
attorneys' fees and court costs paid or incurred by Buyer) which arise out of or are in
any way connected with any misrepresentation or breach of warranty or covenant by
Seller in this Agreement. This indemnity does not apply, however, to any item, matter,
occurrence or condition which was known to or reasonably discoverable by Buyer prior
to the Closing Date.
6.3.2 Buyer's Indemnity. Buyer shall indemnify, protect and defend by
counsel reasonably acceptable to Seller and hold harmless Seller from and against any
and all claims, damages, losses, costs, expenses and liabilities (including all reasonable
attorneys" fees and court costs paid or incurred by Seller) which arise out of or are in
any way connected with the ownership and/or operation of the Property after the
Closing Date or any misrepresentation or breach of warranty or covenant by Buyer in
this Agreement or any document delivered to Seller pursuant to this Agreement.
6.3.3 Indemnified Parties. For purposes of this Section 6.3, all references to
"Buyer" or "Seller" as an indemnified party shall include (A) their parent, subsidiary or
affiliate corporations and (B) their directors, officers, shareholders, employees and
agents.
6.4 Survival. The provisions of this Section 6 shall survive the Closing Date.
7. Warranty Deed.
Seller shall convey the Real Property to Buyer by a warranty deed (the "Deed"), in
the form of Exhibit B, attached hereto. The conclusive evidence of delivery of title to the
Real Property by Seller to Buyer shall be the willingness of Title Company to issue,
upon payment of Title Company's regularly scheduled premium, an owner's standard
form title insurance policy (the "Title Policy") in the amount of the Purchase Price,
showing title to the Real Property vested of record in Buyer, subject only to such
exceptions as are recited in Section 8.2.2.1 below.
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8. Conditions Precedent to Close of Escrow.
In addition to the documents and funds that must be deposited into Escrow prior to
Close of Escrow as detailed in Section 9.2, the following are conditions precedent to
Nose of Escrow:
8.1 Seller. Seller's obligation to proceed with close of Escrow is conditioned on
the satisfaction of each of the following by not later than the Closing Date:
8.1.1 No Suit. As of Close of Escrow, no suit, action or other proceeding
shall be pending or threatened which seeks, nor shall there exist any judgment the
effect of which is, to restrain the purchase and sale of the Property.
8.1.2 Buyer's Representations. Buyer's representations and warranties set
forth herein shall be true and correct as of Close of Escrow.
8.1.3 Buyer's Covenants. Buyer shall have performed all of Buyer's
covenants and agreements contained herein which are required to be performed by
Buyer on or prior to Close of Escrow.
8.1.4 New Branch Location. on or prior to the Closing Date, Seller must
have determined, in its reasonable discretion, that it has secured a satisfactory site for
the relocation of its retail bank branch formerly operated from the Property.
8.2 Buyer. Buyer's conditions precedent to Close of Escrow are the following:
8.2.1 Due Diligence Period. During the Due Diligence Period:
8.2.1.1 Inspection. Buyer's approval of the Buyer Inspections, the Due
Diligence Materials, and all other physical, environmental, legal and any other matters
relating to the Property as Buyer may elect to investigate.
8.2.1.2 Preliminary Report. Buyer's inspection and approval of a current
preliminary report issued by Title company for the Real Property and all of the
exceptions contained in such report. All of the exceptions contained in the preliminary
report -- apart from those enumerated in clauses (i) through (v) of Section 8.2.2.1 below
-- which are approved or deemed approved by Buyer (as provided in Section 5.4) are
hereinafter referred to as the "Permitted Exceptions."
8.2.1.3 City Council Approval. Approval of the purchase of the Property
pursuant to this Agreement by the City Council of the City of Kalispell, Montana.
8.2.2 Close of Escrow. As of Close of Escrow:
8.2.2.1 Title Policy. The willingness of Title Company to issue, upon the
payment of its regularly scheduled premium, a Title Policy for the Real Property, subject
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only to the Permitted Exceptions, and (1) any lien for real property taxes and
assessments not then delinquent; (ii) matters affecting the condition of title to the Real
Property created by or with the written consent of Buyer; (iii) any matters that would be
shown by any survey of the Real Property or by inquiry of persons in possession of the
Real Property; (iv) the WFB Branch Lease; and (v) any covenants, conditions and
restrictions recorded as an interest affecting the Real Property.
8.2.2.2 No Suit. No suit, action or other proceeding shall be pending or
threatened which seeks, nor shall there exist any judgment the effect of which is, to
restrain the purchase and sale of the Property.
8.2.2.3 Seller's Representations. Seller's representations and warranties set
forth herein shall be true and correct.
8.2.2.4 Seller's Covenants. Seller shall have per -formed all of Seller's
covenants and agreements contained herein which are required to be performed by
Seller on or prior to Close of Escrow.
8.3 Failure of Conditions. If any of the conditions set forth above in Section 8.1
remain unsatisfied as of the deadline for Close of Escrow, then Seller may terminate
this Agreement by giving written notice of termination to Buyer within ten (10) days
following such deadline, whereupon all rights and obligations of the parties one to the
other shall cease and terminate (except for Buyer's indemnification obligations under
Section 5.2.6, Buyer's restoration obligations under Section 5.2.5, and the parties'
confidentiality obligations under Section 12.15). If any of the conditions set forth above
in Section 8.2.2 remain unsatisfied as of the deadline for close of Escrow, then this
Agreement shall terminate automatically, unless Buyer immediately waives the
condition(s) precedent that remain unsatisfied and immediately proceeds to close
Escrow. If this Agreement terminates for failure of one or more conditions set forth in
Section 8.2.2, all rights and obligations of the parties one to the other under this
Agreement shall cease and terminate (except for Buyer's indemnification obligations
under Section 5.2.6, Buyer's restoration obligations under Section 5.2.5, and the parties'
confidentiality obligations under Section 12.18).
9. Closin
9.1 Time. Escrow shall close ("Close of Escrow") when all documents and funds
specified in this Section 9 have been deposited into Escrow. The failure of Seller or
Buyer to be in a position to close Escrow by the closing Date shall constitute a default
under this Agreement.
9.2 Documents. Not less than two (2) days prior to Close of Escrow, which shall
occur on or before September 18, 2005, the parties shall deposit into Escrow the funds
and the documents described below.
9.2.1 Seller. Seller shall deposit the following:
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9.2. 1.1 Deed. The duly executed and acknowledged Deed, conveying the
Real Property to Buyer;
9.2.1.2 Bill of Sale. The duly executed Bill of Sale;
9.2. 1.3 Non -Foreign Certificate. A duly executed certificate (the "Non -
Foreign Certificate") from Seller certifying that Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code;
9.2.1.4 WFB Branch Lease. A duly executed counterpart or counterparts of
the WFB Branch Lease;
9.2.1.5 Additional Documents. Such other documents, including escrow
instructions, as may be reasonably required of Seiler to close the transaction in
accordance with this Agreement.
9.2.2 Buyer. Buyer shall deposit the following:
9.2.2.1 Remainder of Purchase Price. The remainder of the Purchase Price;
9.2.2.2 Additional Funds. Additional cash in the amount necessary to pay
Buyer's share of the closing costs and prorations, as hereinafter set forth; and
9.2.2.3 WFB Branch Lease. A duly executed counterpart or counterparts of
the WFB Branch Lease;
9.2.2.4 Additional Documents. Such other documents and funds, including
escrow instructions, as may be reasonably required of Buyer to close the transaction in
accordance with this Agreement.
9.3 Procedure. Escrow Holder shall close Escrow as follows:
9.3. 1 Deed. Record the Deed in the Official Records of the County in which
the Real Property is located and deliver conformed copies thereof to Buyer and Seller.
9.3.2 Purchase Price. Deliver the Purchase Price to Seller (less Seller's
share of the closing costs and prorations) via wire transfer of U.S. federal funds to
Seller's Account, or as otherwise directed by Seller, in accordance with Seller's
instructions provided to Escrow Holder prior to Close of Escrow:
9.3.3 Deliveries to Buyer. Deliver to Buyer (i) the original Non -Foreign
Certificate, (ii) conformed copies of the recorded Deed, (iii) the original Bill of Sale, (iv) a
counterpart original of the WFB Branch Lease; (v) the original Title Policy, and (vi)
Buyer's closing statement.
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9.3.4 Deliveries to Seller. Deliver to Seller (i) conformed copies of the
recorded Deed; (il) a counterpart original of the WFB Branch Lease; and (Iii) Seller's
closing statement.
9.4 Escrow Instructions. This Agreement shall serve as escrow instructions and
an executed copy of this Agreement shall be deposited by Seller and Buyer with Escrow
Holder following the execution and delivery hereof. The parties agree to execute for the
benefit of Escrow Holder such additional escrow instructions as are necessary to close
the Escrow, provided that the additional escrow instructions do not change the terms of
this Agreement but merely offer protection to Escrow Holder. Seller and Buyer hereby
designate Escrow Holder as the "Reporting Person' for the transaction pursuant to
Section 6945(e) of the Internal Revenue code.
9.5 Closing Costs and Prorations.
9.5.1 Closing costs.
9.5.1.1 Seller's Responsibility. Seiler shall be responsible for the
following closing costs: (1) fifty percent (50%) of the standard insurance premium for the
Title Policy; and (ii) Seller's attorneys' fees.
9.5.1.2 Buyer's Responsibility. Buyer shall be responsible for the
following closing costs: (1) fifty percent (50%) of the standard insurance premium for the
Title Policy; (ii) costs for any endorsements to the Title Policy requested by Buyer; (iii)
all costs associated with any financing obtained by Buyer; and (iv) Buyer's attorneys`
fees.
9.5.1.3 Other charges. Other charges of the Closing, including any
governmental impositions incurred as a result of the transfer of title to Buyer (e.g.,
transfer, sales or excise taxes), Escrow fees and recording costs, shall be apportioned
between Buyer and Seller in accordance with the usual custom and practice of the
County in which the Real Property is located.
9.5.2 Prorations. The adjustments and prorations set forth below shall be
made at close of Escrow. For purposes of this Section 9.5.2, the term "Proration Date"
shall be defined as 11:59 p.m. on the day preceding Close of Escrow.
9.5.2.1 Real Estate Taxes. All real and personal property taxes, installments
of bonds and special taxes and assessments attributable to the Property shall be
prorated as of the Proration Date based on a 355-day year and the assessed value of
the Property in effect at Close of Escrow. Seller shall pay all such real estate taxes
which are due for the period of Seller's ownership of the Property through and including
the Proration Date.
9.5.2.2 Re -proration of Real Estate Taxes. If at any time after Close of
Escrow additional or supplemental real estate taxes are assessed against the Real
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Property by reason of any event occurring prior to or including Close of Escrow, or there
is any rebate of such taxes, Buyer and Seller shall promptly re -prorate such taxes, and
any amounts due from one party to the other shall be paid in cash at that time.
9.5.2.3 Utilities. Buyer shall arrange with all utility services and companies
serving the Real Property to have accounts started in the name of Buyer or its property
manager beginning as of the Proration Date. Seller shall not assign to Buyer any
deposits Seller has with any utility services or companies. Buyer and Seller shall
cooperate to have the utility services and companies make utility readings as of the
Proration Date. If readings cannot be made, utility charges shall be prorated as of the
Proration Date based on estimates from the latest bills available; provided, in any event,
Seller shall pay, through and including the Proration Date, all utility charges attributable
to the Property.
9.5.2.4 Refunds of Real Estate Taxes. Buyer specifically acknowledges that
Seller shall be entitled to any refund of real and personal property taxes, installments of
bonds and special taxes and assessments attributable to the Property and allocable to
the period prior to close of Escrow. Any such refunds shall be paid to Seller regardless
of when they are received.
9.5.2.5 Additional Costs. Buyer and Seller each shall pay their own legal,
lending and other fees and expenses incurred in connection with the negotiation,
documentation and closing of the transactions contemplated by this Agreement.
10. Brokerage Commission.
Each party to this Agreement warrants to the other that no person or entity other
than Broker can properly claim a right to a real estate commission, finder's fee or other
real estate brokerage -type commission (collectively, "Real Estate Compensation")
based upon the acts of that party with respect to the transactions contemplated with
respect to this Agreement. Seller shall pay any Real Estate Compensation due to
Broker pursuant to a separate agreement between Seller and Broker. Each party
hereby agrees to indemnify, protect and defend the other (by counsel acceptable to the
party seeking indemnification) against and hold the other harmless from and against
any and all damages, liabilities, loss, cost and expense, including, but not limited to,
reasonable attorneys` fees and court costs, resulting from any claims for Real Estate
Compensation by any person or entity other than the Broker based upon such acts.
This indemnity shall survive Close of Escrow or any earlier termination of this
Agreement.
11. Representations and warranties.
11.1 Buyer. Buyer represents and warrants to Seller, which representations and
warranties shall survive the execution of this Agreement and Close of Escrow, the
following:
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11.1.1 Binding. This Agreement constitutes a valid and legally binding
obligation of Buyer, enforceable in accordance with its terms.
11.1.2 Authority. Buyer has the full power and authority to execute and deliver
and fully perform its obligations under this Agreement.
11.1.3 No Bankruptcy. Buyer has not (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of
an involuntary petition by Buyer's creditors; (iii) suffered the appointment of a receiver to
take possession of all or substantially all of Buyer's assets; (iv) suffered the attachment
or other judicial seizure of all, or substantially all, of Buyers assets; (v) admitted in
writing its inability to pay its debts as they become due; or (vi) made an offer of
settlement, extension or composition to its creditors generally.
11.2 Seller. Seller represents and warrants to Buyer, which representations and
warranties shall survive the execution of this Agreement and Close of Escrow, the
following:
11.2.1 Binding. This Agreement constitutes a valid and legally binding
obligation of Seller, enforceable in accordance with its terms.
11.2.2 Authority. Seller has the full power and authority to execute and deliver
and fully perform its obligations under this Agreement.
12. Miscellaneous.
12.1 Successors and Assigns. This Agreement shall be binding upon the heirs,
executors, administrators, and successors and assigns of Seller and Buyer; provided,
however, Buyer shall not assign any or all of Buyer's rights and obligations hereunder to
any party without the prior written consent of Seller, which consent Seller shall have the
right to withhold in its sole discretion. Any such assignment in violation of this provision
shall be void. If Seller consents to an assignment, the assignment will not be effective
against Seller until Buyer delivers to Seller a fully executed copy of the assignment
instrument, which instrument must be satisfactory to Seller in both form and substance
and pursuant to which the assignee assumes and agrees to perform for the benefit of
Seller the obligations of Buyer under this Agreement, and pursuant to which the
assignee makes the warranties and representations required of Buyer under this
Agreement.
12.2 Entire Agreement. This Agreement contains all of the covenants, conditions
and agreements between the parties and shall supersede all prior correspondence,
agreements and understandings, both oral and written.
12.3 Attorneys' Fees. Should either party employ attorneys to enforce any of the
provisions hereof or to protect its interest in any manner arising under this Agreement,
or to recover damages for breach of this Agreement, or to enforce any judgment relating
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to this Agreement and the transaction contemplated hereby, the prevailing party shall be
entitled to attorneys' fees and court costs, including those incurred with respect to
bankruptcy, insolvency, and receivership proceedings.
12.4 Waiver of Trial by Jury. Each of Seller and Buyer Hereby waives its rights to
a trial by jury as to any matter arising out of or concerning the subject matter of this
Agreement.
12.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Montana..
12.5 Further Assurances. Seller or Buyer shall promptly perform, execute and
deliver or cause to be performed, executed and/or delivered at or after close of Escrow
any and all acts, deeds and assurances as either party or Escrow Holder may
reasonably require in order to carry out the intent and purpose of this Agreement.
12.7 Severability. In case any one or more of the provisions contained in this
Agreement for any reason is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision hereof,
and this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12.8 Notices. All notices required or permitted hereunder shall be in writing, and
shall be personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, national overnight courier service or facsimile to the addresses
stated above. Notices and other communications shall be deemed received upon the
earlier of (i) if personally delivered, the date of delivery to the address of the person to
receive such notice, (ii) if mailed, three (3) business days after the posting by the United
States Post Office, (iii) if sent by national overnight courier service, one (1) business day
after delivery to such courier service, or (iv) if given by facsimile, when sent and receipt
is confirmed. Any notice, request, demand, direction or other communication sent by
facsimile must be confirmed within twenty-four (24) hours by a letter mailed or delivered
in accordance with the foregoing.
12.9 counterparts. This Agreement may be executed in one (1) or more
counterparts, and all of the counterparts shall constitute but one and the same
agreement, notwithstanding that all parties hereto are not signatory to the same or
original counterpart.
12.10 Time. Time is of the essence of every provision herein contained.
12.11 Nonwaiver. Unless otherwise expressly provided herein, no waiver by a
party of any provision hereof shall be deemed to have been made unless expressed in
writing and signed by the party waiving the provision. No delay or omission in the
exercise of any right or remedy accruing to a party upon any breach under this
Agreement shall impair such right or remedy or be construed as a waiver of any such
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breach theretofore or thereafter occurring. The waiver by a party of any breach of any
term, covenant or condition herein stated shall not be deemed to be a waiver of any
other term, covenant or condition. All rights or remedies afforded to a party hereunder
or by law shall be cumulative and not alternative, and the exercise of one right or
remedy shall not bar other rights or remedies allowed herein or by law.
12.12 captions. Section titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or describe
the scope of this Agreement.
12.13 Survival. Except as expressly set forth in this Agreement, upon dose of
Escrow, each of the terms, covenants and conditions of this Agreement shall be
deemed to have merged into the Geed.
12.14 Exhibits. All exhibits attached hereto shall be incorporated herein by
reference as if set out herein in full.
12.15 Construction. The parties acknowledge that each party and its counsel
have reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendment or exhibits hereto.
12.16 Confidentiality. Buyer and Seller agree to keep confidential, and not
publicly disclose, the existence and/or terms of this Agreement and the transaction
contemplated hereby or the results, contents or analysis of the Buyer Inspections of the
Property; provided, however, that both Seller and Buyer may disclose the existence and
terms of this Agreement and the Buyer Inspections to: (i) Buyer's and Seller's
respective consultants, agents, architects, independent contractors, attorneys or
surveys associated with the purchase and sale of the Property, (ii) any third party to
whom the non -disclosing party to this Agreement has given its prior written consent for
such a disclosure, or (iii) governmental, administrative, regulatory or judicial authorities
in the investigation of the compliance of the Property with applicable legal requirements.
However, Buyer expressly covenants and agrees that it will not disclose any code
compliance, environmental or other regulatory matters to governmental or other
authorities without the express prior written approval of Seller. The provisions of this
Section 12.15 shall survive the termination of this Agreement other than by Close of
Escrow.
12.17 Not offer. The submission of this Agreement to Buyer shall not constitute
an offer and neither Buyer nor Seller shall be obligated to purchase or sell the Property
until this Agreement is executed by Buyer and Seller. Prior to execution of this
Agreement by Buyer and Seller, Seller expressly reserves the right to negotiate with
other prospective buyers of the Property or to decline to sell or dispose of the Property
without penalty or any obligation to Buyer.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in one or
more counterparts, on the date(s) set forth below, effective as of the Effective Date,
Seller:
WELLS FAROO BANK, N.A., a national
banking association
.r
Name.
Title: f'
By
1
7
Date: July 2005
Buyer:
CITY OF KALISPELL, MONTANA, a
municipal corporation
By
Name:
Title:
Date: JulyL�, 2005
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
The land referred to in this policy is situated in the State of Montana, County of Flathead and is described as follows:
Lot 14 and the Southerly Half of Lot 15 of Block 57 of Kalispell, Montana,
according to the plat thereof on file in the office of the County Clerk and
Recorder of Flathead County, Montana, particularly described as follows:
BeginnIng at the Southwest corner of said Lot 14; thence
Northwesterly along the Westerly boundary of said. Lot 14 and the Southerly
Half of Lot 15, a distance of 37.5 feet; thence
Northeasterly parallel with the Southerly boundary of said Lot 15, a distance
of 140.0 feet to the Easterly boundary of said Lot 15; thence
Southeasterly along the Easterly boundary 'of the Northerly Half of Lot 15,
and Lot 14, a distance of 37.5 feet to the Southeast corner of said Lot
14; thence
Southwesterly along the Southerly boundary of said Lot 14, a distance of 140.0
feet to the Southwest corner of said lot, the Place of Beginning.
Part of Lots 15, 15 and 17 of Block 57 of Kalispell, Montana, according to
the recorded plat thereof, records of Flathead County, Montana, described
as follows:
Commencing at the Northwest corner of said Block 57; thence
Southeasterly along the westerly boundary of said Block 57, a distance -of
49.00 feet to a point which is the Point of Beginning of the tract to be
described herein; thence
Northeasterly and parallel with the North boundary of said Lot 16, a distance
of 59.00 feet to a point on the West face of the Strand Building; thence
Southerly and parallel with the west boundary of said Bloch 57, a distance of
0.54 feet; thence
Easterly and parallel with the North boundary of said Lot 16, a distance of
10.37 feet to a point which is in the center of a 9 T' bearing wall; thence
Southerly and parallel with the West boundary of said Block 57, and along the
center of the aforesaid 9" bearing wall, a distance of 33.18 feet to a
point which is the ,southwest corner of the Strand Building; thence
Northeasterly and parallel with the North boundary of said Lot 15, and along
the South face of the Strand Building, a distance of 60.63 feet to a point
on the Easterly boundary of Lot 15 of said Block 57; thence
Southerly along the East boundary of said Lot 15 of Block 57, a distance of
4.78 feet; thence
Westerly and parallel with the Northerly boundary of said Lot 15, a distance
of 140.00 feet to a point on the Westerly boundary of said Block 57; thence
Northerly along the Westerly boundary of said Block 57, a distance of 38.50
feet to the Place of Beginning.
--Continued-
A West portion of Lots 17 and 18 in Block 57 of the original Townsite of said
Kalispell, more particularly described as a rectangular tract 49 by 69 feet
measured from the Northwest corner of said Lot 18 Southward on the West lines
of said lots, a distance of 49 feet, and Eastward on the North line of said
Lot 18, a distance of 59 feet.
The Easterly 100 feet of Lots 1 and 2 and of the Northerly 37 11 2 feet of
Lot 3, all in Block 57 of Kalispell, according to the recorded plat thereof,
records of Flathead County, Montana, which tract is more particularly described
as follows:
Beginning at the Northeast corner of said Lot 1; thence
Southeasterly along the Easterly line of said Lots 1, 21 3, a distance of
137 1/2 feet to a point; thence
Southwesterly on a line parallel to the Northerly Line of said Lot 3, a
distance of 100 feet to a point; thence
Northwesterly and parallel to the Easterly line of said Block 57f a distance
of 137 1/2 feet to a point on the Northerly line of said Block 57; thence
Northeasterly along the said. Northerly line of said Block 57, a distance of
1.00 feet to the Place of Beginning.
That part of Lot 3 of Block 57 of Kalispell, Montana, according to the plat
thereof on file in the office of the County Clerk and Recorder of Flathead
County, Montana, particularly described as follows:
Beginning at a point on the Westerly boundary of ' say. d Lot 3, which point is
Southeasterly, a distance of 1.7.5 feet from the Northwest corner of said
Lot 3; thence continuing
Southeasterly along the Westerly boundary of said Lot 3, a distance of 20.0
feet; thence
Northeasterly and parallel with the Northerly boundary of said L ct 3, a
distance of 40.0 feet; thence
Northwesterly and parallel with the Westerly boundary of said Lot 3, a
distance of 20.0 feet; thence
Southwesterly, a distance of 40.0 feet to the Place of Beginning.
-Coy tinued-
44-051
Lots 7 and 8 of Block 44 of Kalispell, Montana, according to the official
map or plat of said Townsite on file and of record in the office of the
County Clerk and Recorder ❑f said county of Flathead, and more particularly
described as follows
Beginning at a point formed by the intersection of the Easterly sine of First
Avenue East and the Northerly line of Second Street, which point is also
the Southwest corner of Lot 7; thence
North 76 `11' East, a distance of 140 feet to the Southeast corner of Lot 7;
thence
North 13 ° 49' 'hest, a distance of 50 feet to the Northeast corner of Lot 8 ;
thence
South 76 011' East, a distance of 140 feet to the Easterly line of First
Avenue East, which point is also the Northwest corner of Lot S; thence
South 13*491 East, a distance of 50 feet to the Point ❑f Beginning.
THE END
44-051
EXHIBIT B
FORM OF WARRANTY DEED
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
CITY OF KALISPELL
P.O. Box 1997
312 First Avenue East
Kalispell, MT 59903-1 997
Attn : City Manager
MAIL ALL TAX STATEMENTS TO:
Same as above.
FOR RECORDER'S USE ONLY
APN:
Transfer Tax: See separate statement not for public record
WARRANTY DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
WELLS FARGO BAND, N.A., a national banking association ("Grantor'), does hereby
grant, bargain, sell and convey to CITY OF KALISPELL ("Grantee"), all that certain real
property located in the City of Kalispell, State of Montana, more particularly described
below:
[Block and Lot Legal Description]
IN WITNESS WHEREOF, this Warranty Deed has been executed this
day of , 2005.
WELLS FARGO BANK, N.A., a national
banking association
By
Name:
Title:
By
Name:
Title:
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EXHIBIT C
DUE DILIGENCE MATERIALS
1. Title Report.
2. Phase I report, May 27, 2005
3. Appraisal dated October 1, 2004
4. Asbestos Survey, May 30, 1988
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EXHIBIT D
BILL OF SALE
FOR AND IN CONSIDERATION of the sum of one Dollar ($1 .00), and other good
and valuable considerations the receipt and sufficiency of which are hereby
acknowledged, the undersigned, WELLS FARGO BANK, N.A., a national banking
association ("Seller"), does hereby sell, assign, convey, transfer, grant, set over and
deliver to CITY OF KALISPELL, MONTANA, a municipal corporation ("Buyer"), the
entire interest of Seller in and to all personal property itemized on Schedule 1, attached
hereto, which personal property is located in that certain building generally known as
201 First Avenue East, Kalispell, Montana.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of this day of
, 2005.
Seller:
WELLS FARGO BANK, N.A.,
a national banking association
By
Name:
Title:
By
Name:
Title:
[Attach Schedule 1 itemizing personal property]
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EXHIBIT E
FORM OF WFB BRANCH LEASE
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EXHIBIT E
FORM of WFB RETAIL LEASE
Kalispell, Montana
RETAIL LEASE
CITY OF KALISPELL, MONTANA,
a municipal corporation
LANDLORD
WELLS FARGO BANK, N.A.,
a national banking association
TENANT
201 First Avenue East
Kalispell, Montana
EXHIBIT E
TABLE OF CONTENTS
p.e
1.
FUNDAMENTAL TERMS AND ATTACHMENTS ................. ■ R ■.. ■,......... 0... 6 ■
2.
DESCRIPTION OF DEMISED PREMISES ...... ....... .....3
3.
TERM ............... .......■......■......•..............•...................■.......... ...... 4
4.
EARLY CANCELLATION BY TENANT.....................................................4
5.
EARLY CANCELLATION BY LANDLORD................................................4
5.
MONTHLY FIXED RENT............................................................................ 5
7.
USE OF DEMISED PREMISES.................................................................. 5
8.
REAL ESTATE TAXES...... ... m ...................................■ . ■ .............................. 5
9.
OUTDOOR FACILITIES ............................................................................. 5
10.
SERVICES..................................................................................................6
11. INSURANCE............................................................................................... 7
12. IMPROVEMENTS, ALTERATIONS AND SIGNAGE............. . . . . . . . . . . ■ ... r . r.... 8
13. MAINTENANCE AND REPAIRS; IMPROVEMENTS AND
REPAIRS REQUIRED BY LAW.................................................................9
14. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS ......................... 9
15. TENANT'S PROPERTY AND 'WAIVER OF LANDLORD'S.
LIEN.......................................................................................................... 11
16. TENANT ASSIGNMENT AND SUBLETTING .......................................... 11
17. LANDLORD ASSIGNMENT..................................................................... 12
18. PARKING AND ACCESS......................r..................................................12
19. DEFAULT.................................................................................................12
20. CONDEMNATION....................................................................................14
21. COSTS AND ATTORNEYS' FEES........................................................... 15
22. NOTICES . . ... . . . . . . . . . . . . . . . . . . . . . . . . . ■ . ■ ■ ■ r r r . . . . . . . . . . . . . . . . . . • . ■ .. • . . . . . . . . . . . . . . \ ■ . ■ . . . . . . . . . . . . . . , . ■ r 15
23. HAZARDOUS SUBSTANCES.................................................................. 15
E-i
TABLE OF CONTENTS
Page
24.
ADJACENT AREAS.................................................................................16
25.
SURVIVAL OF LEASE.............................................................................16
25.
ESTOPPEL CERTIFICATE......................................................................16
27.
INDEMNIFICATION..................................................................................17
28.
REPRESENTATIONS AND WARRANTIES OF LANDLORD..................17
29.
MISCELLANEOUS...................................................................................18
EXHIBITS
EXHIBIT "A" - Legal Description Of the Land
EXHIBIT "B" W Site Plan Of the Demised Premises
E-ii
RETAIL LEASE
THIS RETAIL LEASE ("Lease"), dated , 2005, is made
between CITY OF KALISPELL, MONTANA, a municipal corporation ("Landlord"), and
WELLS FARGO BANK, N.A., a national banking association ("Tenant").
�. FUNDAMENTAL TERMS AND ATTACHMENTS.
(a) Fundamental Terms. The following is a summary schedule of certain
fundamental terms of this Lease.
(i) Landlord: CITY OF KALISPELL
P.O. Box 1997
312 First Avenue East
Kalispell, MT 59903-1997
Attn: City Manager
Tenant: WELLS FARGO BANK, N.A.
c/o Wells Fargo Bank
Corporate Properties Group
533 Folsom Street, 6th Floor
San Francisco, California 94107-3600
Attn: Lease Administration
Existing Leasehold Improve-
ments: All improvements, alterations and additions
comprising all or any part of the Demised Premises as
of the Effective Date. Without limiting the foregoing,
Tenant's existing automated teller machines and night
depository box, together with related and ancillary
equipment and fixtures, shall be treated as a part of
Tenant's Existing Leasehold Improvements.
Div} Demised
Premises: The Building, the Land and the Outdoor Facilities.
(v) Address of Demised
Premises: 201 First Avenue East, Kalispell, MT
(vi) Land: The land legally described on Exhibit "A," attached
hereto.
(vii) Outdoor
Facilities: All parking areas, landscaped areas, sidewalks and
driveways located on the Land outside the Building.
E-1
(viii) Building: 201 First Avenue East.
(ix) Effective
Date: The date that both Landlord and Tenant have signed
this Lease as set forth on the signature pages and
Tenant has received a fully executed counterpart of
this Lease.
(x) Commencement
Date: The date that the sale of the Demised Premises, from
Tenant to Landlord, is completed, as evidenced by
recordation of a warranty deed.
(xi) Term: From the Commencement Date until the expiration of
ten (10) Lease Years following the Commencement
Date, subject to the parties' early termination rights
under Sections 4 and 5.
(xii) Extensions: None.
(xiii) Monthly
Fixed Rent: $41166-66
It is understood and agreed that this is a full service lease, and
Tenant shall not be responsible for any of Landlord's costs related to
the ownership, operation and management of the Demised Premises.
(xiv) Landlord's Permanent Tax Identification
No.: 81-6001281
(xv) Lease Year: The first Lease Year shall be defined as that period
commencing on the Commencement Date and
expiring on the last day of the calendar month in
which the first anniversary of the Commencement
Date occurs; each subsequent Lease Year shall be
the twelve (12) month period beginning on the day
following the expiration of the previous Lease Year.
(xvi) Person: Shall mean any individual, partnership, firm,
association, corporation, trust or any other form of
business or government entity.
(xvii) Hazardous
Substances: Shall mean any and all hazardous, ultra -hazardous,
or toxic substances, wastes or materials regulated
under any laws or regulations applicable to the
environment or the protection of human health.
E-2
(xviii) Legal
Requirements: Shall mean all applicable federal, state and local
laws, statutes, codes, acts, ordinances, directions,
rules, regulations and requirements which apply to
the Demised Premises or the use or occupancy
thereof, including, without limitation, local and state
building, electrical, mechanical, seismic, and fire
and safety codes (including the Americans with
Disabilities Act of 1990, 42 U.S.C. §12101 et seq.
and comparable codes and statutes of the State of
Montana), and all applicable present and future
statutes, regulations, rules, ordinances, codes and
orders relating to Hazardous Substances (including
the reporting, licensing, permitting, investigation and
remediation of emissions, discharges, releases or
threatened releases of Hazardous Substances,
whether into the air, surface water, groundwater or
land, and including the manufacture, processing,
distribution, use, treatment, storage, disposal,
transport and handling of Hazardous substances) or
the protection of human health or the environment.
(xix) Default Rate: Shall mean a ten percent (10%) per annum rate of
interest, compounded monthly on the first day of
each calendar month.
(b) Exhibits. The following exhibits ("Exhibits") are attached hereto and, by this
reference, incorporated herein:
Exhibit "A" -- Legal Description of the Land
Exhibit "B" Site Plan of the Demised Premises
2. DESCRIPTION of DEMISED PREMISES.
In consideration of the mutual covenants contained herein, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the land and all improvements
located thereon and all appurtenances associated therewith commonly known as 201
First Avenue East, which land is legally described on Exhibit "A" attached hereto. The
Building and its outdoor Facilities are described on the site Plan of the Building
attached hereto as Exhibit "B", and are located in Kalispell, Flathead County, state of
Montana. The Building, outdoor Facilities and Land being leased to Tenant (referred to
herein collectively as the "Demised Premises") are shown on the Site Plan attached
hereto as Exhibit "B," and specifically includes Tenant's existing automated teller
machines (ATMs) and night depository box. Landlord also grants to Tenant the non-
exclusive right to use for the Term as an easement appurtenant to the Demised
Premises, (a) all rights, easements and appurtenances belonging or appertaining to the
Land, (b) all right, title and interest of Landlord in and to any and all roads, streets,
alleys and ways bounding the Demised Premises.
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3. TERN[.
(a) The Term shall commence on the Commencement Date and shall continue
for the balance of the Term, subject to early termination in accordance with Sections
4 and 5 below. Tenant is presently in occupancy of the Demised Premises, and
Tenant acknowledges that possession of the Demised Premises shall have been
tendered to and accepted by it as of the Commencement Date, and that the
Demised Premises shall have been delivered in the condition required by this Lease,
i.e., "AS IS. "
(b) The obligation to pay Monthly Fixed Rent and other sums due under this
Lease shall begin on the Commencement Date.
(c) Upon expiration or sooner termination of this Lease, Tenant shall surrender
the Demised Premises to Landlord in good condition, reasonable wear and tear and
casualty excepted. Tenant shall remove all of Tenant's Property (as defined in
Section 1 5(a) below), and any of Tenant's Property not removed from the Demised
Premises on or prior to the expiration of this Lease, or within ten (10) days following
the earlier termination of this Lease, shall be treated as abandoned by Tenant.
Tenant shall also remove any alterations or improvements made to the Demised
Premises (other than the Existing Leasehold Improvements) unless Landlord made
its consent to the original installation of such improvements or alterations
conditioned upon such improvements and alterations not being removed on the
expiration or earlier termination of this Lease. Tenant shall promptly repair any and
all damage done to the Demised Premises caused by the removal of Tenant's
Property and the other improvements or alterations removed by Tenant on the
expiration or earlier termination of this Lease.
(d) In the event Tenant continues to occupy the Demised Premises after the last
day of the Term, as the same may have been extended, and such continued
occupancy is permitted by Landlord, a tenancy from month to month only shall be
created, and Monthly Fixed Rent shall be fixed at one hundred and ten percent
(110%) of the Monthly Fixed Rent that was in effect on the last day of the Term.
4. EARLY CANCELLATION BY TENANT.
Tenant shall have the right to terminate this Lease at any time upon giving Landlord at
least ninety (90) days advance written notice of Tenant's election to terminate this
Lease by virtue of this Section 4. This Lease shall thereupon terminate effective on the
date specified by Tenant in its notice to Landlord (provided that such date must be at
least ninety (90) days thereafter).
5. EARLY CANCELLATION BY LANDLORD.
Landlord shall have the right to terminate this Lease upon giving Tenant at least ninety
(90) days advance written notice of Landlord's election to terminate this Lease by virtue
of this Section 5; provided, however, that no such written election may be given unless
and until Tenant has ceased operating indefinitely in the Demised Premises. This
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Lease shall thereupon terminate effective on the date specified by Landlord in its notice
to Tenant (provided that such date must be at least ninety (90) days thereafter).
8. MONTHLY FIXED RENT.
From and after the Commencement Date, during the Term, Tenant agrees to pay to
Landlord "Monthly Fixed Rent," without offset, claim, or deduction, in the amount set
forth in Section 1(a)(xiii) above. All Monthly Fixed Rent installments are due in advance,
the first monthly installment payment being due on the Commencement date, and each
subsequent installment thereafter on the first day of each and every calendar month
during the Term.
7. USE OF DEMISED PREMISES.
(a) Tenant's "Proposed Use" of the Demised Premises is for a full service bank
with automated teller machines, together with the sale of services and products
provided in the ordinary course of Tenant's financial services business, including
financial services not presently contemplated for the Demised Premises but which
may be offered in other bank branches of Tenant, whether now or in the future. For
purposes of this Lease, "financial services" shall mean products and services now or
hereafter during the Term commonly offered by full service banks, credit unions,
savings and loan associations, financial planners and financial investment
companies (e.g., Charles Schwab & Co., Merrill Lynch etc.), which include, but are
not limited to, traditional banking services (e.g., demand accounts, safe deposit),
mortgage loans, business loans, insurance, stock and mortgage brokerage, financial
planning and tax advice, and whether such products and services are offered for
sale, rental or use by Tenant's employees at the Demised Premises or through
Tenant's ATMs at the Demised Premises. Notwithstanding the foregoing, Tenant
may conduct any lawful activity in the Demised Premises.
(b) Nothing in this Lease shall require Tenant to remain open for business in the
Demised Premises, so long as Tenant performs and observes all other obligations
and conditions on Tenant's part to be performed and observed hereunder.
8. REAL ESTATE TAXES.
Tenant shall pay or cause to be paid, prior to delinquency, any and all taxes and
assessments levied upon all trade fixtures, inventories and other personal property
placed in and upon the Demised Premises by Tenant and owned by Tenant. Landlord
shall be solely responsible for all taxes and/or assessments assessed by any taxing
authority (including sales taxes) which are related to Landlord's ownership of the
Demised Premises, including, without limitation: (a) personal property, fixtures or
equipment taxes assessed against Landlord's property; (b) franchise taxes assessed
against Landlord; (c) taxes on Landlord's gross rents or profits; (d) inheritance, state,
gift, income, transfer or excess profit taxes assessed against Landlord; (e) sales taxes
payable by Landlord; and (f) real property taxes and assessments, including, but not
limited to, any fees, interest and penalties arising from any such tax or assessment,
assessed against all or any portion of the Land and the improvements located thereon,
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including, but not limited to, any such taxes and assessments attributable to the Building
or any portion thereof.
9. OUTDOOR FACILITIES.
(a) Landlord shall maintain, repair, replace, restore, and repaint the Outdoor
Facilities and keep them in good order and repair and in neat, clean and well
maintained condition in accordance with the commercially reasonable standard of
maintenance for buildings similar in size and use to the Building in the general
metropolitan area in which the Building is located. Landlord's obligation shall,
without limitation, include:
(1) resurfacing, including keeping the parking surfaces and access
drives in a level, smooth, and evenly covered condition with the type of
surfacing material originally installed or a substitute material comparable in all
respects in quality, use, and durability;
(ii) cleaning, striping, lighting, and all other tasks necessary to maintain
the parking and Outdoor Facilities in a clean, safe, and orderly condition,
including removal of trash, rubbish, garbage, and other refuse;
(iii) maintaining any perimeter wall in good condition and repair;
[iv] placing, keeping in repair, and replacing any directional signs,
markers, and keeping in repair, and replacing when necessary such artificial
lighting facilities as are required to keep the Outdoor Facilities lit, as required
by Section 9(b);
(v) maintaining, repairing and replacing all utility lines, mains and
facilities and stormwater detention areas; and
(vi) maintaining all landscaped areas, making such replacements of
shrubs and other landscaping as is necessary, and keeping those areas at all
times adequately weeded, fertilized, and watered.
(b) Landlord agrees to provide adequate lighting of the Outdoor Facilities
including the parking lot from thirty (30) minutes before dusk until at least one and
one-half (1-1/2) hours after Tenant closes its business in the Demised Premises,
which lighting shall include the illumination of any pylon or monument sign
advertising Tenant's business conducted in the Demised Premises.
10. SERVICES.
(a) Landlord agrees to cause the necessary mains, conduits and other facilities
to be provided to make water, sewer, gas, phone and electricity available to the
Demised Premises. Landlord shall also make available to Tenant, at Landlord's
expense, all water, sewer, gas and electrical power required for the normal use and
occupancy of the Demised Premises for the Proposed Use.
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11.
(b) Tenant shall be responsible for its own security arrangements.
(c) Landlord shall provide for collection of refuse and garbage from the Demised
Premises on a regular basis, in coordination with Tenant.
(d) Landlord shall not be liable to Tenant in damages or otherwise if utilities or
services are interrupted or terminated because of necessary repairs, installations, or
improvements, or any cause beyond Landlord's reasonable control, nor shall any
such interruption or termination relieve Tenant of the performance of any of its
obligations hereunder, except that if Tenant is unable to operate its business for a
period greater than forty-eight (48) hours after the occurrence of said interruption or
termination, there shall be an abatement of all Rental obligations hereunder during
such period.
INSURANCE.
(a) Landlord agrees to carry, or cause to be carried, during the term hereof
Commercial General Liability Insurance (hereinafter, "Landlord's Liability Insurance")
on the Building, Land and outdoor Facilities, naming Tenant as an additional insured
providing coverage in the following amounts:
General Aggregate: $3,000,000
Products -completed Operations
Aggregate: $3,000,000
Personal and Advertising Injury: $3,000,000
Each Occurrence: $370007000
Fire Damage (any one fire): $ 500,000
Landlord shall promptly deliver to Tenant a certificate of Landlord's Liability
Insurance.
(b) Landlord also agrees to carry, during the Term hereof, all risk property
insurance (hereinafter, "Landlord's Property Insurance") covering fire and extended
coverage, earthquake, vandalism and malicious mischief, sprinkler leakage and all
other perils of direct physical loss or damage (other than flood) insuring the Building
and Outdoor Facilities (excluding Tenant's Property) for the full replacement value
thereof. Landlord Shall furnish Tenant a certificate of Landlord's Property Insurance.
(c) Landlord and Tenant and all parties claiming under them mutually release
and discharge each other from all claims and liabilities arising from or caused by any
casualty or hazard, covered or required hereunder to be covered in whole or in part
by insurance on the Demised Premises, or in connection with property on or
activities conducted on the Demised Premises, and waive any right of subrogation
which might otherwise exist in or accrue to any person on account thereof. Each
insurance policy required to be carried by Landlord or Tenant under this Lease shall
include a clause or endorsement to the effect the waiver contained herein will not
adversely affect or impair such policy or prejudice the right of the insured to recover
under such policy, and each such policy shall permit this waiver of liability and
contain a waiver of subrogation.
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12.
(d) Tenant shall not keep, use, sell or offer for sale in or upon the Demised
Premises any article which may be prohibited by the standard form of fire insurance
policy. In the event Tenant's occupancy causes any increase of premium for the fire,
and/or casualty rates on Landlord's Property Insurance, Tenant shall pay the
additional premium on the fire and/or casualty insurance policies by reason thereof.
Tenant also shall pay in such event, any additional premium on the rent insurance
policy that may be carried by the Landlord for its protection against rent loss through
fire. Bills for such additional premiums shall be rendered by Landlord to Tenant at
such times as Landlord may reasonably elect, and shall be due from, and payable
by, Tenant within thirty (30) days of written demand and the amount thereof shall be
deemed to be, and be paid as, additional Rent.
IMPROVEMENTS, ALTERATIONS AND SIGNAGE.
(a) Tenant shall not make any exterior or structural alterations to the Building
without first obtaining the written consent of Landlord, which shall not be
unreasonably withheld so long as such alterations remain in overall architectural
harmony with the decorative treatment of the Building. Tenant shall be permitted to
make interior, non structural alterations, additions and improvements without
Landlord's prior consent. Subject to compliance with applicable municipal law,
Tenant shall be permitted to affix canopies, awnings and/or flags on the exterior of
the Building from time to time during the Term so long as such items remain in
overall architectural harmony with the decorative treatment of the Building; and
provided further, that nothing herein shall require Tenant's removal of any existing
canopies, awnings and/or flags currently displayed from or upon the Building. On
the expiration or earlier termination of this Lease, all alterations, additions and
improvements installed by Tenant after the Commencement Date shall be removed
from the Demised Premises, and Tenant shall repair any damage occasioned by
such removal, except that such alterations, additions and improvements shall not be
removed if their abandonment by Tenant was an express condition to Landlord's
consent to their original installation or construction.
(b) Throughout the Term, Tenant may maintain and keep all signage currently
installed within or upon the exterior of the Building, and Tenant may replace such
signage, without Landlord's consent, so long as such replacement signage is of the
same general size, type and location as the signage being replaced. Any additional
signage desired by Tenant to be installed on the exterior of the Building shall require
Landlord's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
(c) This Section 12 shall not apply to the installation, use and removal of
"Tenant's Property" (as defined in Section 15(a) below) nor to any Existing
Leasehold Improvements.
13.
14.
MAINTENANCE AND REPAIRS; IMPROVEMENTS AND REPAIRS
REQUIRED BY LAW.
(a) Throughout the Term (except as otherwise specified below), Landlord shall be
solely responsible for undertaking all maintenance, repairs and replacements of the
following items, all without reimbursement from Tenant:
(i) All maintenance, repairs and replacements required for the heating,
ventilation and air-conditioning system serving the Demised Premises;
(ii) All maintenance, repairs and replacements required for the roof, roof
covering and/or roof structure of the Building;
(iii) All maintenance, repairs and replacements required for structural
elements of the Demised Premises, the Building and all outdoor Facilities;
(iv) All maintenance, repairs and
slab or foundations, floors, supporting
and plumbing and electrical systems.
replacements required for the Building
members, structural and outside walls,
(b) Tenant covenants and agrees that during the Term, Tenant shall, at Tenant's
expense, keep, maintain and replace if necessary, the interior of the Building, trade
fixtures, facial signage, and its panels on any monument sign, storefront glass,
storefront doors, Tenant's Property, and all other parts of the Building not otherwise
part of Landlord's responsibility under this Lease, in good condition and repair.
(c) Tenant shall observe and comply with the requirements of all covenants,
conditions and restrictions of record, and all Legal Requirements now or hereafter in
effect, which apply to the Demised Premises by reason of the uses being made of
the Demised Premises by Tenant (i.e., apart from general retail and office uses) or
by reason of any improvements or alterations proposed or undertaken by Tenant or
by reason of any repairs or maintenance required of Tenant hereunder. Landlord
shall be responsible, at Landlord's sole cost and expenses and without
reimbursement from Tenant, for making all repairs, replacements, improvements
and alterations required in order to keep the Building, the Land and the Outdoor
Facilities in compliance with all Legal Requirements, if and to the extent that the
same is not Tenant's responsibility under the preceding sentence.
DAMAGE TO OR DESTRUCTION of IMPROVEMENTS.
(a) If the Demised Premises or any portion thereof shall be damaged or
destroyed by fire or other casualty, Tenant shall immediately notify Landlord orally
and in writing and Landlord shall (except as provided below) promptly remove any
resulting debris and make such repairs, restoration or rebuilding as is necessary to
restore the Demised Premises substantially to their condition immediately prior to
such damage or destruction with all due diligence, and this Lease shall remain in full
force and effect; provided, however, notwithstanding the foregoing or anything to the
contrary hereinafter provided, if any repairs, restoration or reconstruction are not
commenced within sixty (60) days from the date of the casualty and are not actually
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repaired, restored or reconstructed to substantially the same condition in which it
was immediately prior to the casualty within nine (9) months of the date of the
casualty, Tenant may terminate this Lease by delivery of written notice to Landlord.
Provided that Landlord's Property Insurance remains in effect and has not lapsed,
Landlord shall not be required to provide funds in excess of said insurance proceeds
which may be required for such repairing, restoring or rebuilding. In the event of a
termination of the Lease as aforesaid, this Lease shall be null and void and of no
further force or effect and the parties shall have no further rights or obligations
hereunder. Notwithstanding anything to the contrary herein contained, Landlord
shall have no right, title, interest or claim to insurance maintained by Tenant with
respect to Tenant's Property, including, but not limited to insurance proceeds
payable with respect thereto.
(b) Tenant shall be entitled to a prorated deduction of all Rental for that period of
time which the Demised Premises is untenantable, which deduction shall be based
on the proportion of the space rendered untenantable bears to the space originally
demised; provided, however, if Tenant is unable, in its reasonable business
discretion, to operate its business in the Demised Premises, there shall be a full
abatement of all Rental due hereunder.
(c) Landlord agrees to accept the property insurance proceeds recoverable
under Landlord's Property Insurance (as defined above in Section 11) as payment in
full for any loss or damage to its property located in the Demised Premises, including
the Existing Leasehold Improvements, and not to make any claim against or
otherwise seek to recover from Tenant any additional sum for any loss or damage to
the improvements located in the Demised Premises which occur and arise as a
result of matters which can be covered by insurance (whether or not Landlord elects
or fails to so insure), whether or not such loss or damage was caused by the acts or
omissions of Tenant or Tenant's employees, agents, contractors, invitees or other
person or cause which Tenant may be responsible for under law.
(d) If damage is due to any cause other than fire or other peril covered by the
insurance required to be carried by Landlord pursuant to section 11 of this Lease
("Uninsured Casualty"), Landlord may elect to terminate this Lease upon written
notice to Tenant within thirty (30) days following such casualty, provided, however,
Tenant shall have the right within twenty (20) days of receipt of Landlord's notice, to
notify Landlord that Tenant will pay the amount necessary to repair and restore the
Demised Premises resulting from the Uninsured Casualty, in which event Landlord's
notice of termination shall be deemed withdrawn and Tenant shall promptly pay to
Landlord, Landlord's estimate of the sum required to repair and restore the Demised
Premises in excess of any available insurance proceeds, which sum shall be
deposited in a trust account to be disbursed by Landlord only for the costs of repair
and restoration resulting from the Uninsured Casualty, and Landlord shall in such
event promptly proceed with such repair and restoration and use its best efforts to
complete same within one hundred eighty (180) days of the receipt of such funds,
subject to Force Majeure as defined in Section 29(k) of this Lease.
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15. TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN.
(a) "Tenant's Property" shall mean all trade fixtures, business equipment,
inventory, trademarked items, decorative soffit, counters, shelving, showcases, teller
lines, automated teller machines, night depositories, vaults, safe deposit boxes,
security cameras, furniture, mirrors and other removable personal property installed
in and removed from the Demised Premises from time to time by Tenant. All of
Tenant's Property shall remain the property of Tenant. Landlord agrees that Tenant
shall have the right, at any time and from time to time, to remove any and all of
Tenant's Property. Tenant, at its expense, shall immediately repair any damage
occasioned by the removal of Tenant's Property and upon expiration or earlier
termination of this Lease. Tenant shall pay before delinquency all license fees and
public charges levied, assessed or imposed upon its business operation in the
Demised Premises as well as upon Tenant's Property. if any such items of property
are assessed with property of Landlord, then such assessment shall be equitably
divided between Landlord and Tenant.
(b) From time to time, some or all of Tenant's Property may be financed or
owned by someone other than Tenant. To the extent that any of Tenant's Property
is financed or owned by someone other than Tenant, (i) Landlord agrees that such
Tenant's Property is not Landlord's property no matter how the same is affixed to the
Demised Premises or used by Tenant and agrees to recognize the rights of the
lender or owner of Tenant's Property, and (ii) Landlord waives any claim arising by
way of any Landlord's _lien (whether created by statute or by contract) or otherwise
with respect to Tenant's Property and agrees to sign and deliver to any lender,
secured creditor or lessor a waiver of any lien Landlord may have on Tenant's
Property if required by such lender, secured creditor or lessor.
15. TENANT ASSIGNMENT AND SUBLETTING.
Tenant shall have the absolute right to sublet, assign or otherwise transfer its interest in
this Lease to any parent or operating subsidiary of Tenant, or subsidiary of Tenant's
parent, or to a corporation with which it may merge or consolidate ("Permitted
Transfer"), without Landlord's approval, written or otherwise, as long as Tenant remains
liable for full performance of all its obligations under this Lease. Provided that Tenant
has not permanently discontinued nor indefinitely suspended operations in the Demised
Premises providing banking and other financial services (it being understood that use of
the demised Premises that is limited to the continued operation of automated banking
equipment shall not be treated as a suspension or discontinuance of banking services),
Landlord's consent shall also not be required for any licensing arrangement between
Tenant and other companies that provide services or products available at or through
the Demised Premises that are incidental to banking and financial services; and such
licensing arrangements shall also be treated as `Permitted Transfers." The consent of
Landlord to any other transfer, assignment, subletting, license or concession agreement
or hypothecation may be given or withheld by Landlord in its sole and absolute
discretion. If Landlord fails to respond to any request by Tenant for Landlord's consent
or approval within thirty (30) days of such request, the consent or approval of Landlord
shall be deemed given.
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17. LANDLORD ASSIGNMENT.
Landlord shall have the fight to transfer, assign and convey, in whole or in part, any or
all of the right, title and interest to the Building and the Building and shall be released of
liability and obligations accruing after the effective date of the transfer, provided, such
transferee or assignee shall be bound by the terms, covenants and agreements herein
contained, and shall expressly assume and agree in writing to perform the covenants
and agreements of Landlord herein contained and such assignment shall not be
effective until notice of such assignment or transfer, together with an executed copy of
such assignment or transfer instrument, is received by Tenant.
13. PARKING AND ACCESS.
Tenant shall have the exclusive use of all parking stalls on the Land. All parking shall
be available to Tenant, its customer, invitees, employees and agents, at no cost or
expense throughout the entire Term. Landlord shall not reduce or reconfigure parking
spaces, nor grant rights to use such parking to other persons, without Tenant's written
consent, except that Tenant shall not unreasonably withhold its consent to a
reconfiguration plan that allows greater parking on the Land. Landlord shall not permit,
except to the extent required by law, any fire lane, loading zone or other restrictive
parking (except legally -required handicapped parking spaces) to be located in the
vicinity of Tenant's entrances to the Building.
19. DEFAULT.
(a) The occurrence of any of the following shall constitute a material default and
breach of this Lease by Tenant (hereinafter "Event of Default"):
(i) Any failure by Tenant to pay Monthly Fixed Rent or make any other
payment required to be made by Tenant hereunder within ten (10) days after
receipt of written notice from the Landlord. Notwithstanding the foregoing,
Tenant shall not be in default for non-payment of Monthly Fixed Rent if (1)
there exists a good faith dispute regarding the amount of such Monthly Fixed
Rent or Tenant's liability therefor, and (2) Tenant has paid all Monthly Fixed
Rent not in dispute, and (3) Tenant has deposited the amount of all disputed
Monthly Fixed Rent into an independent escrow with instructions for such
sums not to be released except upon the written concurrence of both Landlord
and Tenant, and (4) Tenant thereafter takes reasonable measures to resolve
the dispute with Landlord as expeditiously as possible by whatever legal
means are permitted or required by this Lease.
(ii) Failure to perform any other provision of this Lease if the failure to
perform is not cured within 30 days after written notice specifying the default
has been given to Tenant. If the default cannot reasonably be cured within 30
days, Tenant shall not be in default of this lease if Tenant commences to cure
the default within the 30 day period and diligently and in good faith continues
to cure the default.
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(iii) The making by Tenant of any general assignment for the benefit of
creditors, the filing by or against Tenant of a petition to have Tenant adjudged
a bankrupt, or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession that is not restored to Tenant within thirty (30)
days, or the attachment, execution or other judicial seizure that is not
discharged within thirty (30) days.
(b) In the Event of Default by Tenant, then, in addition to all other rights and
remedies available to Landlord by law or by other provisions hereof, at Landlord's
option, Landlord may annul and cancel this Lease as to all future rights of Tenant.
Tenant further agrees that in case of any such termination Tenant will indemnify the
Landlord against all loss of Rent which Landlord may incur by reason of such
termination, including, but not limited to, costs of restoring and repairing the
Demised Premises and putting the same in rentable condition, costs of renting the
Demised Premises to another tenant, loss or diminution of rents and other damage
which Landlord may incur by reason of such termination and all reasonable
attorneys fees and expenses incurred in enforcing any of the terms of this Lease.
Neither acceptance of Rent by Landlord, with or without knowledge of breach, nor
failure of Landlord to take action on account of any breach hereof, or to enforce its
rights hereunder, shall be deemed a waiver of any breach, and absent written notice
or consent, said breach shall be a continuing one.
(c) If Tenant shall fail to pay, when the same is due and payable and after
proper notice and the expiration of all cure periods, any Monthly Fixed Rent, said
unpaid amounts shall bear interest from the due date thereof to the date of payment
at the Default Rate. Tenant shall in addition, pay as additional Rent a fee of One
Hundred Dollars ($100.00) for processing of late payments, late payments being
defined as sums overdue and unpaid after proper notice and the expiration of all
cure periods.
(d) If Landlord should be in default in the performance of any of its obligations
under this Lease, which default continues for a period of more than thirty (30) days
after receipt of written notice from Tenant to Landlord (and any mortgage lender of
Landlord's who has executed a Non -Disturbance and Attornment Agreement
acceptable to Tenant) specifying such default, or if such default is of a nature to
require more than thirty (30) days for remedy, but Landlord has not undertaken
procedures to cure the default within such thirty (30) day period and diligently
pursued such efforts to complete cure, Tenant may incur any expense necessary to
perform the obligation of Landlord specified in such notice and deduct such expense
from the Monthly Fixed Rent or other charges next becoming due. If the default
continues for 30 days after written notice is received by the foregoing persons, of if
such default is of a nature requiring more than 30 days to cure but Landlord has not
undertaken procedures to cure the default within such 30-day period and diligently
pursued such efforts to complete cure, then Tenant may abate all Rental due
hereunder for the duration of the continuance of the default.
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(e) If Landlord's default under Section 19(d) impairs Tenant's use or occupancy
of the Demised Premises, and such default remains uncured or uncorrected after the
notices required by Section 19(d) have been given and the cure periods therein
provided have elapsed, or in the case of any emergency (in which event no notice or
time to cure shall be required for Tenant to proceed in accordance with the further
provisions of this Section 19(e)), Tenant may, but shall not be obligated to, perform
such obligations of Landlord or otherwise remedy Landlord's default(s); and Landlord
shall pay to Tenant on demand the cost of Tenant's corrective action, plus interest
on such costs at the Default Rate until paid; or Tenant may, at its option, deduct
such corrective costs, plus interest, from the next ensuing Monthly Fixed Rent
payments and all other payments due Landlord by the terms of this Lease until said
amount has been paid in full.
20. CONDEMNATION.
(a) If ten percent (10%) or more of the Demised Premises shall be appropriated
or taken under the power of eminent domain by any public or quasi -public authority,
then, at the election of either Landlord or Tenant, this Lease shall terminate and
expire as of the date of such taking, and both Landlord and Tenant shall thereupon
be released from any liability thereafter accruing hereunder.
(b) Unless reasonably adequate substitute parking can be provided, if more than
twenty percent (20%) of the square footage of the parking area is taken under the
power of eminent domain by any public or quasi --public authority, then Tenant shall
have the sight to terminate this Lease as of the date of the taking. If less than twenty
percent (20%) of the applicable parking is so taken by eminent domain, then this
lease shall remain in full force and effect, but Landlord shall use its best efforts to
provide adequate substitute parking to Tenant.
(c) Any termination notice pursuant to this Section must be delivered within sixty
(60) days after the date the applicable property is taken by the condemning
authority.
(d) whether or not this Lease is terminated, nothing herein shall be deemed to
affect Tenant's right to receive compensation for damages to Tenant's Property.
Tenant shall have the right to pursue its claim for damages against the condemning
authority in connection with any eminent domain proceeding. If this Lease is
terminated pursuant to this Section 20, all Monthly Fixed Rent and other charges for
the last month of Tenant's occupancy shall be prorated and Landlord shall refund to
Tenant any Monthly Fixed Rent or other charges paid in advance.
(e) If both Landlord and Tenant elect not to terminate this Lease, Tenant shall
remain in that portion of the Demised Premises which shall not have been
appropriated or taken, and Landlord agrees, at Landlord's cost and expense, as
soon as reasonably possible, to restore the remaining portion of the Demised
Premises to a complete unit of like quality and character as existed prior to such
appropriation or taking, and, thereafter, all Monthly Fixed Rent and payment
obligations of Tenant shall be adjusted on an equitable basis, taking into account the
relative value of the portion taken as compared to the portion remaining. For
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purposes of this Section 20, a voluntary sale or conveyance in lieu of condemnation,
but under threat of condemnation, shall be deemed an appropriation or taking under
the power of eminent domain.
(f) Landlord represents and warrants that at the Effective Date, it has no actual
or constructive knowledge of any proposed condemnation, road or access or
visibility changes, including turn restrictions, barriers or medians, overpasses,
underpasses or bypasses, that would affect the Building, the outdoor Facilities or
the Demised Premises or Tenant's Proposed Use of any part of the Building or the
Demised Premises.
21. COSTS AND ATTORNEYS` FEES.
If Landlord or Tenant shall bring any action against the other, arising out of this Lease,
the prevailing party shall be reimbursed by the other party for reasonable attorneys' fees
and costs incurred in such suit, at trial and on appeal, and such attorneys' fees and
costs shall be deemed to have accrued on the commencement of such action.
22. NOTICES.
All notices, demands, or other communications of any type (herein collectively referred
to as "Notices") given by Landlord to Tenant or by Tenant to Landlord, whether required
by this Lease or in any way related to the transaction contracted for herein, shall be void
and of no effect unless given in accordance with the provisions of this Lease. All
Notices shall be legible and in writing and shall be delivered to the person to whom the
Notice is directed, either in person with a receipt requested therefor or sent by a
recognized overnight courier service for next day delivery or by United States certified
mail, return receipt requested, postage prepaid and addressed to the parties at their
respective addresses set forth in Section 1, and the same shall be effective (a) upon
receipt or refusal if delivered personally, (b) one (1) business day after depositing with
such an overnight courier service, or (c) three (3) business days after deposit in the
mails if mailed, addressed to Landlord and Tenant. Either party hereto may change the
address for Notices specified above by giving the other party ten (10) days advance
written Notice of such change of address.
23. HAZARDOUS SUBSTANCES.
(a) Landlord covenants that if Hazardous Substances are now or hereafter
present in the Demised Premises in amounts or under circumstances that violate
any Legal Requirements, or if any leak, Spill, discharge, emission or disposal of
Hazardous Substances has occurred or hereafter occurs, or if the soil and
groundwater under the Dernised Premises are now or hereafter contaminated with
Hazardous Substances, that unless Tenant has responsibility therefor in accordance
with Section 23(b) below, Landlord will investigate and remediate the environmental
condition at Landlord's sole Cost and expense, and without reimbursement from
Tenant. Landlord agrees to indemnify, defend, protect and hold Tenant and its
officers, employees and agents harmless from any claims, judgments, damages,
fines, penalties, costs, liabilities (including sums paid in settlement of claims) or loss
including attorney's fees, consultants fees, and expert fees which arise during or
EW15
after the Term in connection with the presence or suspected presence of Hazardous
Substances in, on or under the Demised Premises, unless such Hazardous
Substances are present as the result of the negligence or willful misconduct of
Tenant, its officers, employees or agents. Without limiting the generality of the
foregoing, this indemnification specifically covers costs incurred in connection with
any investigation of site conditions or any cleanup, remedial, removal or restoration
work required by any federal, state or local governmental agency or political
subdivision because of the presence or suspected presence of Hazardous
Substances in, on or under the Demised Premises, unless the Hazardous
Substances are present as the result of the negligence or willful misconduct of
Tenant, its officers, agents or employees.
(b) Tenant shall not use, store, generate, transit or dispose of any Hazardous
Substances upon, in about, or under the Demised Premises, except any use or
storage of any such Hazardous Substances customarily used in business offices,
provided that such use or storage complies with all Legal Requirements. Tenant
agrees to indemnify, defend, protect and hold Landlord and its officers, employees
and agents harmless from any claims, judgments, damages, fines, penalties, casts,
liabilities (including sums paid in settlement of claims) or loss including attorneys
fees, consultants fees, and expert fees which arise during or after the Term resulting
from the discharge, dumping, spilling (accidental or otherwise) onto parts of the
Demised Premises by Tenant or any of its employees, agents, contractors or
invitees. Without limiting the generality of the foregoing, this indemnification
specifically covers costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision.
24. ADJACENT AREAS.
Landlord shall not make any material change to the Outdoor Facilities within fifty (50)
feet from the Demised Premises in any direction if, in Tenant's good faith business
judgment, it would interfere with parking availability, visibility or access to the Building,
and shall keep all access and walkways adjoining the Building free from obstructions.
25. SURVIVAL of LEASE.
All representations, warranties and indemnities contained in this Lease shall survive the
termination or expiration of this Lease.
20. ESTOPPEL CERTIFICATE.
Tenant and Landlord agree at any time and from time to time, upon not less than ten
(10) business days' prior written request from the other party, to execute, acknowledge
and deliver to the requesting party a statement in writing, in form and content
reasonably acceptable to both parties, an estoppel certificate certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the modifications), the dates to
which Monthly Fixed Rent has been paid and certifying that it is not in default (or if a
default is alleged, stating the nature of the alleged default), and further certifying such
E-16
other matters as the requesting party shall require. It is intended that any such
statement delivered pursuant to this Section may be relied upon by any prospective
purchaser, lender, subtenant, assignee or any entity which is a party to a potential
merger, consolidation with or to the acquisition of substantially all of the assets or stock
of Landlord, or Tenant.
27. INDEMNIFICATION.
(a) Subject to section 11 (c) ,
. ify g.... , representatives, employees,
Tenant shall indemnify and hold Landlord, its a ents re
and officers harmless from and against any and all claims, demands, liabilities, and
expenses, including attorney's fees, arising from Tenant's use of the Demised
Premises or from any act permitted, or any omission to act, in or about the Demised
Premises, by Tenant or its agents, employees, contractors, customers or invitees, or
from any breach or default by Tenant of this Lease, except to the extent caused by
Landlord's negligence or willful misconduct. In the event any action or proceeding
shall be brought against Landlord by reason of any such claim, Tenant shall defend
the same at Tenant's expense by counsel reasonably satisfactory to Landlord.
(b) Subject to Section 11 (c) ,
Landlord shall indemnify and hold Tenant, its agents representatives, employe
and officers harmless from and against any and all claims, demands, liabilities, and
expenses, including attorney's fees, arising from Landlord's obligations or use of the
Demised Premises, or parts of the Building outside of the Demised Premises, or
from any act permitted, or any omission to act, in or about the Demised Premises or
Land by Landlord or its agents, employees, contractors, or invitees, or from any
breach or default by Landlord of this Lease, except to the extent caused by Tenant's
negligence or willful misconduct. In the event any action or proceeding shall be
brought against Tenant by reason of any such claim, Landlord shall defend the same
at Landlord's expense by counsel reasonably satisfactory to Tenant.
28. REPRESENTATIONS AND WARRANTIES OF LANDLORD.
To induce Tenant to execute, deliver and perform this Lease and without regard to any
independent investigations made by Tenant, Landlord represents and warrants to
Tenant on and as of the Effective Date as follows:
(a) Landlord has full capacity, right, power and authority to execute, deliver and
perform this Lease and all documents to be executed by Landlord pursuant hereto,
and all required action and approvals therefor have been duly taken and obtained.
The individuals signing this Lease and all other documents executed or to be
executed pursuant hereto on behalf of Landlord are and shall be duly authorized to
sign the same on Landlord's behalf and to bind Landlord thereto. This Lease and all
documents to be executed pursuant hereto by Landlord are and shall be binding
upon and enforceable against Landlord in accordance with their respective terms,
and the transaction contemplated hereby will not result in a breach of, or constitute a
default or permit acceleration of maturity under, any indenture, mortgage, deed of
trust, loan agreement or other agreement to which Landlord or the Demised
Premises is subject or by which Landlord or the Demised Premises is bound.
E-17
(b) There are no claims, causes of action or other litigation or proceedings
pending or, to the best of Landlord's knowledge, threatened in respect to the owner
ship, operation or environmental condition of the Building or 'Demised Premises or
any part thereof (including disputes with mortgagees, govern mental or quasi -
governmental authorities, utility companies, contractors, adjoining land owners or
suppliers of goods or services), except for claims which are fully insured and as to
which the insurer has accepted defense without reservation.
29. MISCELLANEOUS.
(a) Any and all discussions and negotiations between Landlord and Tenant have
been merged into this Lease. No rights are conferred upon Landlord until this Lease
has been executed by Tenant. Any and all representations and agreements by
either of the parties or their agents made during negotiations prior to execution of
this Lease and which representations are not contained in this Lease shall not be
binding upon either of the parties.
(b) Landlord and Tenant represent and warrant to each other that they have not
had any dealings with any real estate brokers, finders or agents in connection with
this Lease.
(c) All terms and words used in this Lease, regardless of the number and gender
in which they are used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context or sense of this Lease or any portion of this Lease may require, the same as
if such words had been fully and properly written in the number and gender.
(d) This Lease may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but such counterparts
together shall constitute but one and the same instrument.
(e) Landlord and Tenant are not and shall not be considered joint venturers nor
partners and neither shall have power to bind or obligate the other except as set
forth in this Lease.
(f) If any provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons whose circumstances
are other than those as to which it is held invalid or unenforceable, shall not be
affected thereby.
(g) No modification, alteration or amendment of this Lease shall be binding
unless in writing and executed by both parties hereto.
(h) The headings to the Sections of this Lease are inserted only as a matter of
convenience and for reference, and in no way confine, limit or proscribe the scope or
intent of any Section of this Lease, nor in any way affect this Lease.
(1) This Lease shall be binding upon and inure to the benefit of the parties and
any subtenants and their heirs, administrators, executors, successors and assigns.
E- 1 8
0) Time is of the essence of this Lease and each provision; provided, however,
if the final (but not any interim) date of any period set forth herein falls on a
Saturday, Sunday or legal holiday under the laws of the United States of America,
the final date of such period shall be extended to the next business day.
(k) If Landlord or Tenant is delayed or prevented from performing any of its
obligations under this Lease by reason of strike, lockouts, labor troubles, failure of
power, riots, insurrection, war, acts of God or any other cause beyond that party's
control (collectively, "Force Majeure"), the period of such delay or such prevention
shall be deemed added to the time period herein provided for the performance of
any such obligation by that party.
(1) This Lease shall be governed by and construed and interpreted in
accordance with the laws of the state in which the Building is located.
(m) Each party hereto has reviewed and revised (or requested revisions of) this
Lease, and therefore any usual rules of construction requiring that ambiguities are to
be resolved against a particular party shall not be applicable in the construction and
interpretation of this Lease or any Exhibits hereto.
(n) Whenever either party is entitled to exercise its discretion hereunder, or to
give or withhold its consent to some proposed action, each party agrees that it shall
act reasonably in exercise its discretion, or withholding its consent, unless the
relevant provisions of this Lease permit such party to act in its absolute discretion or
sole judgment.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed on the dates set forth below, intending the same to be effective as of the
Effective Date.
LANDLORD:
CITY OF KALISPELL, MONTANA, a
municipal corporation
By .....
Name:
Title:
By
Name:
Title:
Date:
TENANT:
WELLS FAROO BANK, N.A., a national
banking association
By
Name:
Title:
By
Name:
Title:
, 2005 Date:
2005
E- 1 9
Kalispell, Montana
RETAIL LEASE
CITY OF KALISPELL, MONTANA,
a municipal corporation
LANDLORD
F,
WELLS FARGO BANK, N.A.,
a national banking association
TENANT
201 First Avenue East
Kalispell, Montana
TABLE OF CONTENTS
Paae
1.
FUNDAMENTAL TERMS AND ATTACHMENTS ............................... r. r.,. r 1
2.
DESCRIPTION OF DEMISED PREMISES .................................................
3
3.
TERM..........................................................................................................4
4.
EARLY CANCELLATION BY TENANT.....................................................4
5.
EARLY CANCELLATION BY LANDLORD................................................4
G.
MONTHLY FIXED RENT............................................................................
5
7.
USE OF DEMISED PREMISES..................................................................
5
8.
REAL ESTATE TAXES ......................................... . ......... . ..........................
5
9.
OUTDOOR FACILITIES.............................................................................6
10.
SERVICES..................................................................................................5
11.
INSURANCE...............................................................................................
7
12.
IMPROVEMENTS, ALTERATIONS AND SIGNAGE..................................
8
13.
MAINTENANCE AND REPAIRS; IMPROVEMENTS AND
REPAIRSREQUIRED BY LAW .................................................................9
14.
DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS .........................9
15.
TENANT'S PROPERTY AND WAIVER OF LANDLORD'S
LIEN..........................................................................................................11
16.
TENANT ASSIGNMENT AND SUBLETTING ...................... 0.......... 6... 0 r...
11
17.
LANDLORD ASSIGNMENT.....................................................................12
18.
PARKING AND ACCESS.........................................................................12
19.
DEFAULT.................................................................................................12
29.
CONDEMNATION....................................................................................14
21.
COSTS AND ATTORNEYS' FEES...........................................................15
22.
NOTICES..................................................................................................15
23.
HAZARDOUS SUBSTANCES..................................................................15
TABLE OF CONTENTS
Paae
24.
ADJACENT AREAS ................................. . ...............................................1
S
25.
SURVIVAL of LEASE............................................................0................18
25.
ESTOPPEL CERTIFICATE......................................................................15
27.
INDEMNIFICATION..................................................................................17
28.
REPRESENTATIONS AND WARRANTIES OF LANDLORD ..................
17
29.
MISCELLANEOUS...................................................................................18
EXHIBITS
EXHIBIT "Ai' - Legal Description of the Land
EXHIBIT "B" - Site Plan of the Demised Premises
RETAIL LEASE
THIS RETAIL LEASE ("Lease"), dated , 2005, is made
between CITY OF KALISPELL, MONTANA, a municipal corporation ("Landlord"), and
WELLS FARGO BANK, N.A., a national banking association (""Tenant").
1. FUNDAMENTAL TERMS AND ATTACHMENTS.
(a) Fundamental Terms. The following is a summary schedule of certain
fundamental terms of this Lease.
(i) Landlord: CITY OF KALISPELL
P.O. Box 1997
312 First Avenue East
Kalispell, MT 59903-1997
Attn: City Manager
Tenant: WELLS FARGO BANK, N.A.
c/o Wells Fargo Bank
Corporate Properties Group
633 Folsom Street, 6th Floor
San Francisco, California 04107-3600
Attn : Lease Administration
Existing Leasehold Improve-
ments: All improvements, alterations and additions
comprising all or any part of the Demised Premises as
of the 'Effective Date. Without limiting the foregoing,
Tenant's existing automated teller machines and night
depository box, together with related and ancillary
equipment and fixtures, shall be treated as a part of
Tenant's Existing Leasehold Improvements.
Div} Demised
Premises: The Building, the Land and the outdoor Facilities.
M Address of Demised
Premises: 201 First Avenue East, Kalispell, MT
(vi) Land: The land legally described on Exhibit "A," attached
hereto.
(vii) outdoor
Facilities: All parking areas, landscaped areas, sidewalks and
driveways located on the Land outside the Building.
1
(viii) Building: 201 First Avenue East.
(ix) Effective
Date: The date that both Landlord and Tenant have signed
this Lease as set forth on the signature pages and
Tenant has received a fully executed counterpart of
this Lease.
fix} Commencement
Date: The date that the sale of the Demised Premises, from
Tenant to Landlord, is completed, as evidenced by
recordation of a warranty deed.
(xi) Term: From the Commencement Date until the expiration of
ten (10) Lease Years following the commencement
Date, subject to the parties' early termination rights
under Sections 4 and 5.
(xii) Extensions: None.
(xiii) Monthly
Fixed Rent: $4,166.66
It is understood and agreed that this is a full service lease, and
Tenant shall not be responsible for any of Landlord's costs related to
the ownership, operation and management of the Demised Premises.
(xiv) Landlord's Permanent Tax Identification
No.: 81-6001281
(xv) Lease Year: The first Lease Year shall be defined as that period
commencing on the commencement Date and
expiring on the last day of the calendar month in
which the first anniversary of the commencement
Date occurs; each subsequent Lease. Year shall be
the twelve (12) month period beginning on the day
following the expiration of the previous Lease Year.
(xvi) Person: Shall mean any individual, partnership, firm,
association, corporation, trust or any other form of
business or government entity.
(xvii) Hazardous
Substances: Shall mean any and all hazardous, ultra -hazardous,
or toxic substances, wastes or materials regulated
under any laws or regulations applicable to the
environment or the protection of human health.
2
(xviii) Legal
Requirements: Shall mean all applicable federal, state and local
laws, statutes, codes, acts, ordinances, directions,
rules, regulations and requirements which apply to
the Demised Premises or the use or occupancy
thereof, including, without limitation, local and state
building, electrical, mechanical, seismic, and fire
and safety codes (including the Americans with
Disabilities Act of 1990, 42 U.S.C. §12101 et seq.
and comparable codes and statutes of the State of
Montana), and all applicable present and future
statutes, regulations, rules, ordinances, codes and
orders relating to Hazardous Substances (including
the reporting, licensing, permitting, investigation and
remediation of emissions, discharges, releases or
threatened releases of Hazardous Substances,
whether into the air, surface water, groundwater or
land, and including the manufacture, processing,
distribution, use, treatment, storage, disposal,
transport and handling of Hazardous Substances) or
the protection of human health or the environment.
(xix) Default Rate: Shall mean a ten percent (10%) per annum rate of
interest, compounded monthly on the first day of
each calendar month.
(b) Exhibits. The following exhibits ("Exhibits") are attached hereto and, by this
reference, incorporated herein:
Exhibit "A" Legal Description of the Land
Exhibit "B" Site Plan of the Demised Premises
2. DESCRIPTION of DEMISED PREMISES.
In consideration of the mutual covenants contained herein, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the land and all improvements
located thereon and all appurtenances associated therewith commonly known as 201
First Avenue East, which land is legally described on Exhibit "A" attached hereto. The
Building and its outdoor Facilities are described on the Site Plan of the Building
attached hereto as Exhibit "B", and are located in Kalispell, Flathead County, State of
Montana. The Building, Outdoor Facilities and Land being leased to Tenant (referred to
herein collectively as the "Demised Premises") are shown on the Site Plan attached
hereto as Exhibit "B," and specifically includes Tenant's existing automated teller
machines (ATMs) and night depository box. Landlord also grants to Tenant the non-
exclusive right to use for the Term as an easement appurtenant to the Demised
Premises, (a) all rights, easements and appurtenances belonging or appertaining to the
Land, (b) all right, title and interest of Landlord in and to any and all roads, streets,
alleys and ways bounding the Demised Premises.
K
3. TERM.
(a) The Term shall commence on the Commencement Date and shall continue
for the balance of the Term, subject to early termination in accordance with Sections
4 and 5 below. Tenant is presently in occupancy of the Demised Premises, and
Tenant acknowledges that possession of the Demised Premises shall have been
tendered to and accepted by it as of the Commencement Date, and that the
Demised Premises shall have been delivered in the condition required by this Lease,
i.e., "AS IS. "
(b) The obligation to pay Monthly Fixed Rent and other sums due under this
Lease shall begin on the Commencement Date.
(c) Upon expiration or sooner termination of this Lease, Tenant shall surrender
the Demised Premises to Landlord in good condition, reasonable wear and tear and
casualty excepted. Tenant shall remove all of Tenant's Property (as defined in
Section 15(a) below), and any of Tenant's Property not removed from the Demised
Premises on or prior to the expiration of this Lease, or within ten (10) days following
the earlier termination of this Lease, shall be treated as abandoned by Tenant.
Tenant shall also remove any alterations or improvements made to the Demised
Premises (other than the Existing Leasehold Improvements) unless Landlord made
its consent to the original installation of such improvements or alterations
conditioned upon such improvements and alterations not being removed on the
expiration or earlier termination of this Lease. Tenant shall promptly repair any and
all damage done to the Demised Premises caused by the removal of Tenant's
Property and the other improvements or alterations removed by Tenant on the
expiration or earlier termination of this Lease.
(d) In the event Tenant continues to occupy the Demised Premises after the last
day of the Term, as the same may have been extended, and such continued
occupancy is permitted by Landlord, a tenancy from month to month only shall be
created, and Monthly Fixed Rent shall be fixed at one hundred and ten percent
(110%) of the Monthly Fixed Rent that was in effect on the last day of the Term.
4. EARLY CANCELLATION BY TENANT.
Tenant shall have the right to terminate this Lease at any time upon giving Landlord at
least ninety (90) days advance written notice of Tenant's election to terminate this
Lease by virtue of this Section 4. This Lease shall thereupon terminate effective on the
date specified by Tenant in its notice to Landlord (provided that such date must be at
least ninety (90) days thereafter).
5. EARLY CANCELLATION BY LANDLORD.
Landlord shall have the right to terminate this Lease upon giving Tenant at least ninety
(90) days advance written notice of Landlord's election to terminate this Lease by virtue
of this Section 5; provided, however, that no such written election may be given unless
and until Tenant has ceased operating indefinitely in the Demised Premises. This
4
Lease shall thereupon terminate effective on the date specified by Landlord in its notice
to Tenant (provided that such date must be at least ninety (90) days thereafter).
8. MONTHLY FIXED RENT.
From and after the Commencement Date, during the Term, Tenant agrees to pay to
Landlord "Monthly Fixed Rent," without offset, claim, or deduction, in the amount set
forth in Section 1(a)(xiii) above. All Monthly Fixed Rent installments are due in advance,
the first monthly installment payment being due on the Commencement Date, and each
subsequent installment thereafter on the first day of each and every calendar month
during the Term.
7. USE OF DEMISED PREMISES.
(a) Tenant's "Proposed Use" of the Demised Premises is for a full service bank
with automated teller machines, together with the sale of services and products
provided in the ordinary course of Tenant's financial services business, including
financial services not presently contemplated for the Demised Premises but which
may be offered in other bank branches of Tenant, whether now or in the future. For
purposes of this Lease, "financial services" shall mean products and services now or
hereafter during the Term commonly offered by full service banks, credit unions,
savings and loan associations, financial planners and financial investment
companies (e.g., Charles Schwab & Co., Merrill Lynch etc.), which include, but are
not limited to, traditional banking services (e.g., demand accounts, safe deposit),
mortgage loans, business loans, insurance, stock and mortgage brokerage, financial
planning and tax advice, and whether such products and services are offered for
sale, rental or use by Tenant's employees at the Demised Premises or through
Tenant's ATMs at the Demised Premises. Notwithstanding the foregoing, Tenant
may conduct any lawful activity in the Demised Premises.
(b) Nothing in this Lease shall require Tenant to remain open for business in the
Demised Premises, so long as Tenant performs and observes all other obligations
and conditions on Tenant's part to be performed and observed hereunder.
8. REAL ESTATE TAXES.
Tenant shall pay or cause to be paid, prior to delinquency, any and all taxes and
assessments levied upon all trade fixtures, inventories and other personal property
placed in and upon the Demised Premises by Tenant and owned by Tenant. Landlord
shall be solely responsible for all taxes and/or assessments assessed by any taxing
authority [including sales taxes] which are related to Landlord's ownership of the
Demised Premises, including, without limitation: (a) personal property, fixtures or
equipment taxes assessed against Landlord's property; (b) franchise taxes assessed
against Landlord; (c) taxes on Landlord's gross rents or profits; (d) inheritance, state,
gift, income, transfer or excess profit taxes assessed against Landlord; (e) sales taxes
payable by Landlord; and (f) real property taxes and assessments, including, but not
limited to, any fees, interest and penalties arising from any such tax or assessment,
assessed against all or any portion of the Land and the improvements located thereon,
k
including, but not limited to, any such taxes and assessments attributable to the Building
or any portion thereof.
9. OUTDOOR FACILITIES.
(a) Landlord shall maintain, repair, replace, restore, and repaint the outdoor
Facilities and keep them in good order and repair and in neat, clean and well
maintained condition in accordance with the commercially reasonable standard of
maintenance for buildings similar in size and use to the Building in the general
metropolitan area in which the Building is located. Landlord's obligation shall,
without limitation, include:
(i) resurfacing, including keeping the parking surfaces and access
drives in a level, smooth, and evenly covered condition with the type of
surfacing material originally installed or a substitute material comparable in all
respects in quality, use, and durability;
(ii) cleaning, striping, lighting, and all other tasks necessary to maintain
the parking and outdoor Facilities in a clean, safe, and orderly condition,
including removal of trash, rubbish, garbage, and other refuse;
(iii) maintaining any perimeter wall in good condition and repair;
(iv) placing, keeping in repair, and replacing any directional signs,
markers, and keeping in repair, and replacing when necessary such artificial
lighting facilities as are required to keep the outdoor Facilities lit, as required
by Section 9(b);
(v) maintaining, repairing and replacing all utility lines, mains and
facilities and stormwater detention areas; and
(vi) maintaining all landscaped areas, making such replacements of
shrubs and other landscaping as is necessary, and keeping those areas at all
times adequately weeded, fertilized, and watered.
(b) Landlord agrees to provide adequate lighting of the outdoor Facilities
including the parking lot from thirty (30) minutes before dusk until at least one and
one-half (1-1/2) hours after Tenant closes its business in the Demised Premises,
which lighting shall include the illumination of any pylon or monument sign
advertising Tenant's business conducted in the Demised Premises.
10. SERVICES.
(a) Landlord agrees to cause the necessary mains, conduits and other facilities
to be provided to make water, sewer, gas, phone and electricity available to the
Demised Premises. Landlord shall also make available to Tenant, at Landlord's
expense, all water, sewer, gas and electrical power required for the normal use and
occupancy of the Demised Premises for the Proposed Use.
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11.
(b) Tenant shall be responsible for its own security arrangements.
(c) Landlord shall provide for collection of refuse and garbage from the Demised
Premises on a regular basis, in coordination with Tenant.
(d) Landlord shall not be liable to Tenant in damages or otherwise if utilities or
services are interrupted or terminated because of necessary repairs, installations, or
improvements, or any cause beyond Landlord's reasonable control, nor shall any
such interruption or termination relieve Tenant of the performance of any of its
obligations hereunder, except that if Tenant is unable to operate its business for a
period greater than forty-eight (48) hours after the occurrence of said interruption or
termination, there shall be an abatement of all Rental obligations hereunder during
such period.
INSURANCE.
(a) Landlord agrees to carry, or cause to be carried, during the term hereof
Commercial General Liability Insurance (hereinafter, "Landlord's Liability Insurance")
on the Building, Land and Outdoor Facilities, naming Tenant as an additional insured
providing coverage in the following amounts:
General Aggregate: $310007000
Products -completed operations
Aggregate: $31000,000
Personal and Advertising Injury: $3,000,000
Each Occurrence: $31000X0
Fire Damage (any one fire): $ 5001000
Landlord shall promptly deliver to Tenant a certificate of Landlord's Liability
Insurance.
(b) Landlord also agrees to carry, during the Term hereof, all risk property
insurance (hereinafter, "Landlord's Property Insurance") covering fire and extended
coverage, earthquake, vandalism and malicious mischief, sprinkler leakage and all
other perils of direct physical loss or damage (other than flood) insuring the Building
and Outdoor Facilities (excluding Tenant's Property) for the full replacement value
thereof. Landlord shall furnish Tenant a certificate of Landlord's Property Insurance.
(c) Landlord and Tenant and all parties claiming under them mutually release
and discharge each other from all claims and liabilities arising from or caused by any
casualty or hazard, covered or required hereunder to be covered in whole or in part
by insurance on the Demised Premises, or in connection with property on or
activities conducted on the Demised Premises, and waive any right of subrogation
which might otherwise exist in or accrue to any person on account thereof. Each
insurance policy required to be carried by Landlord or Tenant under this Lease shall
include a clause or endorsement to the effect the waiver contained herein will not
adversely affect or impair such policy or prejudice the right of the insured to recover
under such policy, and each such policy shall permit this waiver of liability and
contain a waiver of subrogation.
7
12.
(d) Tenant shall not keep, use, sell or offer for sale in or upon the demised
Premises any article which may be prohibited by the standard form of fire insurance
policy. In the event Tenant's occupancy causes any increase of premium for the fire,
and/or casualty rates on Landlord's Property Insurance, Tenant shall pay the
additional premium on the fire and/or casualty insurance policies by reason thereof.
Tenant also shall pay in such event, any additional premium on the rent insurance
policy that may be carried by the Landlord for its protection against rent loss through
fire. Bills for such additional premiums shall be rendered by Landlord to Tenant at
such times as Landlord may reasonably elect, and shall be due from, and payable
by, Tenant within thirty (30) days of written demand and the amount thereof shall be
deemed to be, and be paid as, additional Rent.
IMPROVEMENTS, ALTERATIONS AND SICNACE.
(a) Tenant shall not make any exterior or structural alterations to the Building
without first obtaining the written consent of Landlord, which shall not be
unreasonably withheld so long as such alterations remain in overall architectural
harmony with the decorative treatment of the Building. Tenant shall be permitted to
make interior, non structural alterations, additions and improvements without
Landlord's prior consent. Subject to compliance with applicable municipal law,
Tenant shall be permitted to affix canopies, awnings and/or flags on the exterior of
the Building from time to time during the Term so long as such items remain in
overall architectural harmony with the decorative treatment of the Building; and
provided further, that nothing herein shall require Tenant's removal of any existing
canopies, awnings and/or flags currently displayed from or upon the Building. On
the expiration or earlier termination of this Lease, all alterations, additions and
improvements installed by Tenant after the Commencement Date shall be removed
from the Demised Premises, and Tenant shall repair any damage occasioned by
such removal, except that such alterations, additions and improvements shall not be
removed if their abandonment by Tenant was an express condition to Landlord's
consent to their original installation or construction.
(b) Throughout the Term, Tenant may maintain and keep all signage currently
installed within or upon the exterior of the Building, and Tenant may replace such
signage, without Landlord's consent, so long as such replacement signage is of the
same general size, type and location as the signage being replaced. Any additional
signage desired by Tenant to be installed on the exterior of the Building shall require
Landlord's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
(c) This Section 12 shall not apply to the installation, use and removal of
"Tenant's Property" (as defined in Section 15(a) below) nor to any Existing
Leasehold Improvements.
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13.
14.
MAINTENANCE AND REPAIRS; IMPROVEMENTS AND REPAIRS
REQUIRED BY LAW.
(a) Throughout the Term (except as otherwise specified below), Landlord shall be
solely responsible for undertaking all maintenance, repairs and replacements of the
following items, all without reimbursement from Tenant:
(i) All maintenance, repairs and replacements required for the heating,
ventilation and air-conditioning system serving the Demised Premises;
(1i) All maintenance, repairs and replacements required for the roof, roof
covering and/or roof structure of the Building;
(iii) All maintenance, repairs and replacements required for structural
elements of the Demised Premises, the Building and all outdoor Facilities;
(iv) All maintenance, repairs and
slab or foundations, floors, supporting
and plumbing and electrical systems.
replacements required for the Building
members, structural and outside walls,
(b) Tenant covenants and agrees that during the Term, Tenant shall, at Tenant's
expense, keep, maintain and replace if necessary, the interior of the Building, trade
fixtures, facial signage, and its panels on any monument sign, storefront glass,
storefront doors, Tenant's Property, and all other parts of the Building not otherwise
part of Landlord's responsibility under this Lease, in good condition and repair.
(c) Tenant shall observe and comply with the requirements of all covenants,
conditions and restrictions of record, and all Legal Requirements now or hereafter in
effect, which apply to the Demised Premises by reason of the uses being made of
the Demised Premises by Tenant (i.e., apart from general retail and office uses) or
by reason of any improvements or alterations proposed or undertaken by Tenant or
by reason of any repairs or maintenance required of Tenant hereunder. Landlord
shall be responsible, at Landlord's sole cost and expenses and without
reimbursement from Tenant, for making all repairs, replacements, improvements
and alterations required in order to keep the Building, the Land and the outdoor
Facilities in compliance with all Legal Requirements, if and to the extent that the
same is not Tenant's responsibility under the preceding sentence.
DAMAGE To OR DESTRUCTION OF IMPROVEMENTS.
(a) If the Demised Premises or any portion thereof shall be damaged or
destroyed by fire or other casualty, Tenant shall immediately notify Landlord orally
and in writing and Landlord shall (except as provided below) promptly remove any
resulting debris and make such repairs, restoration or rebuilding as is necessary to
restore the Demised Premises substantially to their condition immediately prior to
such damage or destruction with all due diligence, and this Lease shall remain in full
force and effect; provided, however, notwithstanding the foregoing or anything to the
contrary hereinafter provided, if any repairs, restoration or reconstruction are not
commenced within sixty (60) days from the date of the casualty and are not actually
9
repaired, restored or reconstructed to substantially the same condition in which it
was immediately prior to the casualty within nine (9) months of the date of the
casualty, Tenant may terminate this Lease by delivery of written notice to Landlord.
Provided that Landlord's Property Insurance remains in effect and has not lapsed,
Landlord shall not be required to provide funds in excess of said insurance proceeds
which may be required for such repairing, restoring or rebuilding. In the event of a
termination of the Lease as aforesaid, this Lease shall be null and void and of no
further force or effect and the parties shall have no further rights or obligations
hereunder. Notwithstanding anything to the contrary herein contained, Landlord
shall have no right, title, interest or claim to insurance maintained by Tenant with
respect to Tenant's Property, including, but not limited to insurance proceeds
payable with respect thereto.
(b) Tenant shall be entitled to a prorated deduction of all Rental for that period of
time which the Demised Premises is untenantable, which deduction shall be based
on the proportion of the space rendered untenantable bears to the space originally
demised; provided, however, if Tenant is unable, in its reasonable business
discretion, to operate its business in the Demised Premises, there shall be a full
abatement of all Rental due hereunder.
(c) Landlord agrees to accept the property insurance proceeds recoverable
under Landlord's Property Insurance (as defined above in Section 11 ) as payment in
full for any loss or damage to its property located in the Demised Premises, including
the Existing Leasehold Improvements, and not to make any claim against or
otherwise seek to recover from Tenant any additional sum for any loss or damage to
the improvements located in the Demised Premises which occur and arise as a
result of matters which can be covered by insurance (whether or not Landlord elects
or fails to so insure), whether or not such loss or damage was caused by the acts or
omissions of Tenant or Tenant's employees, agents, contractors, invitees or other
person or cause which Tenant may be responsible for under law.
(d) If damage is due to any cause other than fire or other peril covered by the
insurance required to be carried by Landlord pursuant to Section 11 of this Lease
("Uninsured Casualty"), Landlord may elect to terminate this Lease upon written
notice to Tenant within thirty (30) days following such casualty, provided, however,
Tenant shall have the right within twenty (20) days of receipt of Landlord's notice, to
notify Landlord that Tenant will pay the amount necessary to repair and restore the
Demised Premises resulting from the Uninsured casualty, in which event Landlord's
notice of termination shall be deemed withdrawn and Tenant shall promptly pay to
Landlord, Landlord's estimate of the sum required to repair and restore the Demised
Premises in excess of any available insurance proceeds, which sum shall be
deposited in a trust account to be disbursed by Landlord only for the costs of repair
and restoration resulting from the Uninsured Casualty, and Landlord shall in such
event promptly proceed with such repair and restoration and use its best efforts to
complete same within one hundred eighty (180) days of the receipt of such funds,
subject to Force Majeure as defined in Section 29(k) of this Lease.
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15. TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN.
(a) "Tenant's Property" shall mean all trade fixtures, business equipment,
inventory, trademarked items, decorative soffit, counters, shelving, showcases, teller
lines, automated teller machines, night depositories, vaults, safe deposit boxes,
security cameras, furniture, mirrors and other removable personal property installed
in and removed from the Demised Premises from time to time by Tenant. All of
Tenant's Property shall remain the property of Tenant. Landlord agrees that Tenant
shall have the right, at any time and from time to time, to remove any and all of
Tenant's Property. Tenant, at its expense, shall immediately repair any damage
occasioned by the removal of Tenant's Property and upon expiration or earlier
termination of this Lease. Tenant shall pay before delinquency all license fees and
public charges levied, assessed or imposed upon its business operation in the
Demised Premises as well as upon Tenant's Property. If any such items of property
are assessed with property of Landlord, then such assessment shall be equitably
divided between Landlord and Tenant.
(b) From time to time, some or all of Tenant's Property may be financed or
owned by someone other than Tenant. To the extent that any of Tenant's Properly
is financed or owned by someone other than Tenant, (1) Landlord agrees that such
Tenant's Property is not Landlord's property no matter how the same is affixed to the
Demised Premises or used by Tenant and agrees to recognize the rights of the
lender or owner of Tenant's Property, and (H) Landlord waives any claim arising by
way of any Landlord's lien (whether created by statute or by contract) or otherwise
with respect to Tenant's Property and agrees to sign and deliver to any lender,
secured creditor or lessor a waiver of any lien Landlord may have on Tenant's
Property if required by such lender, secured creditor or lessor.
16. TENANT ASSIGNMENT AND SUBLETTING.
Tenant shall have the absolute right to sublet, assign or otherwise transfer its interest in
this Lease to any parent or operating subsidiary of Tenant, or subsidiary of Tenant's
parent, or to a corporation with which it may merge or consolidate ("Permitted
Transfer"), without Landlord's approval, written or otherwise, as long as Tenant remains
liable for full performance of all its obligations under this Lease. Provided that Tenant
has not permanently discontinued nor indefinitely suspended operations in the Demised
Premises providing banking and other financial services (it being understood that use of
the Demised Premises that is limited to the continued operation of automated banking
equipment shall not be treated as a suspension or discontinuance of banking services),
Landlord's consent shall also not be required for any licensing arrangement between
Tenant and other companies that provide services or products available at or through
the Demised Premises that are incidental to banking and financial services; and such
licensing arrangements shall also be treated as "Permitted Transfers." The consent of
Landlord to any other transfer, assignment, subletting, license or concession agreement
or hypothecation may be given or withheld by Landlord in its sole and absolute
discretion. If Landlord falls to respond to any request by Tenant for Landlord's consent
or approval within thirty (30) days of such request, the consent or approval of Landlord
shall be deemed given.
11
17. LANDLORD ASSIGNMENT.
Landlord shall have the right to transfer, assign and convey, in whole or in part, any or
all of the right, title and interest to the Building and the Building and shall be released of
liability and obligations accruing after the effective date of the transfer, provided, such
transferee or assignee shall be bound by the terms, covenants and agreements herein
contained, and shall expressly assume and agree in writing to perform the covenants
and agreements of Landlord herein contained and such assignment shall not be
effective until notice of such assignment or transfer, together with an executed copy of
such assignment or transfer instrument, is received by Tenant.
18. PARKING AND ACCESS.
Tenant shall have the exclusive use of all parking stalls on the Land. All parking shall
be available to Tenant, its customer, invitees, employees and agents, at no cost or
expense throughout the entire Term. Landlord shall not reduce or reconfigure parking
spaces, nor grant rights to use such parking to other persons, without Tenant's written
consent, except that Tenant shall not unreasonably withhold its consent to a
reconfiguration plan that allows greater parking on the Land. Landlord shall not permit,
except to the extent required by law, any fire lane, loading zone or other restrictive
parking (except legally -required handicapped parking spaces) to be located in the
vicinity of Tenant's entrances to the Building.
19. DEFAULT.
(a) The occurrence of any of the following shall constitute a material default and
breach of this Lease by Tenant (hereinafter 'Event of default"):
0) Any failure by Tenant to pay Monthly Fixed Rent or make any other
payment required to be made by Tenant hereunder within ten (10) days after
receipt of written notice from the Landlord. Notwithstanding the foregoing,
Tenant shall not be in default for non-payment of Monthly Fixed Rent if (1)
there exists a good faith dispute regarding the amount of such Monthly Fixed
Rent or Tenant's liability therefor, and (2) Tenant has paid all Monthly Fixed
Rent not in dispute, and (3) Tenant has deposited the amount of all disputed
Monthly Fixed Rent into an independent escrow with instructions for such
sums not to be released except upon the written concurrence of both Landlord
and Tenant, and (4) Tenant thereafter takes reasonable measures to resolve
the dispute with Landlord as expeditiously as possible by whatever legal
means are permitted or required by this Lease.
(ii) Failure to perform any other provision of this Lease if the failure to
perform is not cured within 39 days after written notice specifying the default
has been given to Tenant. If the default cannot reasonably be cured within 30
days, Tenant shall not be in default of this lease if Tenant commences to cure
the default within the 30 day period and diligently and in good faith continues
to cure the default.
12
(iii) The making by Tenant of any general assignment for the benefit of
creditors, the filing by or against Tenant of a petition to have Tenant adjudged
a bankrupt, or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition fled against Tenant,
the same is dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession that is not restored to Tenant within thirty (30)
days, or the attachment, execution or other judicial seizure that is not
discharged within thirty (30) days.
(b) In the Event of Default by Tenant, then, in addition to all other rights and
remedies available to Landlord by law or by other provisions hereof, at Landlord's
option, Landlord may annul and cancel this Lease as to all future rights of Tenant.
Tenant further agrees that in case of any such termination Tenant will indemnify the
Landlord against all loss of Rent which Landlord may incur by reason of such
termination, including, but not limited to, costs of restoring and repairing the
Demised Premises and putting the same in rentable condition, costs of renting the
Demised Premises to another tenant, loss or diminution of rents and other damage
which Landlord may incur by reason of such termination and all reasonable
attorneys fees and expenses incurred in enforcing any of the terms of this Lease.
Neither acceptance of Rent by Landlord, with or without knowledge of breach, nor
failure of Landlord to take action on account of any breach hereof, or to enforce its
rights hereunder, shall be deemed a waiver of any breach, and absent written notice
or consent, said breach shall be a continuing one.
(c) If Tenant shall fail to pay, when the same is due and payable and after
proper notice and the expiration of all cure periods, any Monthly Fixed Rent, said
unpaid amounts shall bear interest from the due date thereof to the date of payment
at the Default Rate. Tenant shall in addition, pay as additional Rent a fee of One
Hundred Dollars ($100.00) for processing of late payments, late payments being
defined as sums overdue and unpaid after proper notice and the expiration of all
cure periods.
(d) If Landlord should be in default in the performance of any of its obligations
under this Lease, which default continues for a period of more than thirty (30) days
after receipt of written notice from Tenant to Landlord (and any mortgage lender of
Landlord's who has executed a Non -Disturbance and Attornment Agreement
acceptable to Tenant) specifying such default, or if such default is of a nature to
require more than thirty (30) days for remedy, but Landlord has not undertaken
procedures to cure the default within such thirty (30) day period and diligently
pursued such efforts to complete cure, Tenant may incur any expense necessary to
perform the obligation of Landlord specified in such notice and deduct such expense
from the Monthly Fixed Rent or other charges next becoming due. If the default
continues for 30 days after written notice is received by the foregoing persons, of if
such default is of a nature requiring more than 30 days to cure but Landlord has not
undertaken procedures to cure the default within such 30-day period and diligently
pursued such efforts to complete cure, then Tenant may abate all Rental due
hereunder for the duration of the continuance of the default.
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(e) If Landlord's default under Section 19(d) impairs Tenant's use or occupancy
of the Demised Premises, and such default remains uncured or uncorrected after the
notices required by Section 19(d) have been given and the cure periods therein
provided have elapsed, or in the case of any emergency (in which event no notice or
time to cure shall be required for Tenant to proceed in accordance with the further
provisions of this Section 19(e)}, Tenant may, but shall not be obligated to, perform
such obligations of Landlord or otherwise remedy Landlord's default(s); and Landlord
shall pay to Tenant on demand the cost of Tenant's corrective action, plus interest
on such costs at the Default Rate until paid; or Tenant may, at its option, deduct
such corrective costs, plus interest, from the next ensuing Monthly Fixed Rent
payments and all other payments due Landlord by the terms of this Lease until said
amount has been paid in full.
20. CONDEMNATION.
(a) If ten percent (10%) or more of the Demised Premises shall be appropriated
or taken under the power of eminent domain by any public or quasi -public authority,
then, at the election of either Landlord or Tenant, this Lease shall terminate and
expire as of the date of such taking, and both Landlord and Tenant shall thereupon
be released from any liability thereafter accruing hereunder.
(b) Unless reasonably adequate substitute parking can be provided, if more than
twenty percent (20%) of the square footage of the parking area is taken under the
power of eminent domain by any public or quasi -public authority, then Tenant shall
have the right to terminate this Lease as of the date of the taking. If less than twenty
percent (20%) of the applicable parking is so taken by eminent domain, then this
lease shall remain in full force and effect, but Landlord shall use its best efforts to
provide adequate substitute parking to Tenant.
(c) Any termination notice pursuant to this Section must be delivered within sixty
(00) days after the date the applicable property is taken by the condemning
authority.
(d) Whether or not this Lease is terminated, nothing herein shall be deemed to
affect Tenant's right to receive compensation for damages to Tenant's Property.
Tenant shall have the right to pursue its claim for damages against the condemning
authority in connection with any eminent domain proceeding. If this Lease is
terminated pursuant to this Section 20, all Monthly Fixed Rent and other charges for
the last month of Tenant's occupancy shall be prorated and Landlord shall refund to
Tenant any Monthly Fixed Rent or other charges paid in advance.
(e) If both Landlord and Tenant elect not to terminate this Lease, Tenant shall
remain in that portion of the Demised Premises which shall not have been
appropriated or taken, and Landlord agrees, at Landlord's cost and expense, as
soon as reasonably possible, to restore the remaining portion of the Demised
Premises to a complete unit of like quality and character as existed prior to such
appropriation or taking, and, thereafter, all Monthly Fixed Rent and payment
obligations of Tenant shall be adjusted on an equitable basis, taking into account the
relative value of the portion taken as compared to the portion remaining. For
14
purposes of this Section 20, a voluntary sale or conveyance in lieu of condemnation,
but under threat of condemnation, shall be deemed an appropriation or taking under
the power of eminent domain.
(f) Landlord represents and warrants that at the Effective Date, it has no actual
or constructive knowledge of any proposed condemnation, road or access or
visibility changes, including turn restrictions, barriers or medians, overpasses,
underpasses or bypasses, that would affect the Building, the Outdoor Facilities or
the Demised Premises or Tenant's Proposed Use of any part of the Building or the
Demised Premises.
21. COSTS AND ATTORNEYS' FEES.
If Landlord or Tenant shall bring any action against the other, arising out of this Lease,
the prevailing party shall be reimbursed by the other party for reasonable attorneys' fees
and costs incurred in such suit, at trial and on appeal, and such attorneys' fees and
costs shall be deemed to have accrued on the commencement of such action.
22. NOTICES.
All notices, demands, or other communications of any type (herein collectively referred
to as "Notices") given by Landlord to Tenant or by Tenant to Landlord, whether required
by this Lease or in any way related to the transaction contracted for herein, shall be void
and of no effect unless given in accordance with the provisions of this Lease. All
Notices shall be legible and in writing and shall be delivered to the person to whom the
Notice is directed, either in person with a receipt requested therefor or sent by a
recognized overnight courier service for next day delivery or by United States certified
mail, return receipt requested, postage prepaid and addressed to the parties at their
respective addresses set forth in Section 1, and the same shall be effective (a) upon
receipt or refusal if delivered personally, (b) one (1) business day after depositing with
such an overnight courier service, or (c) three (3) business days after deposit in the
mails if mailed, addressed to Landlord and Tenant. Either party hereto may change the
address for Notices specified above by giving the other party ten (10) days advance
written Notice of such change of address.
23. HAZARDOUS SUBSTANCES.
(a) Landlord covenants that if Hazardous Substances are now or hereafter
present in the Demised Premises in amounts or under circumstances that violate
any Legal Requirements, or if any leak, spill, discharge, emission or disposal of
Hazardous Substances has occurred or hereafter occurs, or if the soil and
groundwater under the Demised Premises are now or hereafter contaminated with
Hazardous Substances, that unless Tenant has responsibility therefor in accordance
with Section 23[b] below, Landlord will investigate and remediate the environmental
condition at Landlord's sole cost and expense, and without reimbursement from
Tenant. Landlord agrees to indemnify, defend, protect and hold Tenant and its
officers, employees and agents harmless from any claims, judgments, damages,
fines, penalties, costs, liabilities (including sums paid in settlement of claims) or loss
including attorney's fees, consultants fees, and expert fees which arise during or
15
after the Term in connection with the presence or suspected presence of Hazardous
Substances in, on or under the Demised Premises, unless such Hazardous
Substances are present as the result of the negligence or willful misconduct of
Tenant, its officers, employees or agents. Without limiting the generality of the
foregoing, this indemnification specifically covers costs incurred in connection with
any investigation of site conditions or any cleanup, remedial, removal or restoration
work required by any federal, state or local governmental agency or political
subdivision because of the presence or suspected presence of Hazardous
Substances in, on or under the Demised Premises, unless the Hazardous
Substances are present as the result of the negligence or willful misconduct of
Tenant, its officers, agents or employees.
(b) Tenant shall not use, store, generate, transit or dispose of any Hazardous
Substances upon, in about, or under the Demised Premises, except any use or
storage of any such Hazardous Substances customarily used in business offices,
provided that such use or storage complies with all Legal Requirements. Tenant
agrees to indemnify, defend, protect and hold Landlord and its officers, employees
and agents harmless from any claims, judgments, damages, fines, penalties, costs,
liabilities (including sums paid in settlement of claims) or loss including attorney's
fees, consultants fees, and expert fees which arise during or after the Term resulting
from the discharge, dumping, spilling (accidental or otherwise) onto parts of the
Demised Premises by Tenant or any of its employees, agents, contractors or
invitees. Without limiting the generality of the foregoing, this indemnification
specifically covers costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision.
24. ADJACENT AREAS.
Landlord shall not make any material change to the Outdoor Facilities within fifty (50)
feet from the Demised Premises in any direction if, in Tenant's good faith business
judgment, it would interfere with parking availability, visibility or access to the Building,
and shall keep all access and walkways adjoining the Building free from obstructions.
25. SURVIVAL of LEASE.
All representations, warranties and indemnities contained in this Lease shall survive the
termination or expiration of this Lease.
26. ESTOPPEL CERTIFICATE.
Tenant and Landlord agree at any time and from time to time, upon not less than ten
(10) business days' prior written request from the other party, to execute, acknowledge
and deliver to the requesting party a statement in writing, in form and content
reasonably acceptable to both parties, an estoppel certificate certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the modifications), the dates to
which Monthly Fixed Rent has been paid and certifying that it is not in default (or if a
default is alleged, stating the nature of the alleged default), and further certifying such
16
other matters as the requesting party shall require. It is intended that any such
statement delivered pursuant to this Section may be relied upon by any prospective
purchaser, lender, subtenant, assignee or any entity which is a party to a potential
merger, consolidation with or to the acquisition of substantially all of the assets or stock
of Landlord, or Tenant.
27. INDEMNIFICATION.
(a) Subject to Section 11(c), Tenant shall indemnify and hold Landlord, its
agents, representatives, employees, and officers harmless from and against any and
all claims, demands, liabilities, and expenses, including attorney's fees, arising from
Tenant's use of the Demised Premises or from any act permitted, or any omission to
act, in or about the Demised Premises, by Tenant or its agents, employees,
contractors, customers or invitees, or from any breach or default by Tenant of this
Lease, except to the extent caused by Landlord's negligence or willful misconduct.
In the event any action or proceeding shall be brought against Landlord by reason of
any such claim, Tenant shall defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord.
(b) Subject to Section 11(c), Landlord shall indemnify and hold Tenant, its
agents, representatives, employees, and officers harmless from and against any and
all claims, demands, liabilities, and expenses, including attorney's fees, arising from
Landlord's obligations or use of the Demised Premises, or parts of the Building
outside of the Demised Premises, or from any act permitted, or any omission to act,
in or about the Demised Premises or Land by Landlord or its agents, employees,
contractors, or invitees, or from any breach or default by Landlord of this Lease,
except to the extent caused by Tenant's negligence or willful misconduct. In the
event any action or proceeding shall be brought against Tenant by reason of any
such claim, Landlord shall defend the same at Landlord's expense by counsel
reasonably satisfactory to Tenant.
28. REPRESENTATIONS AND WARRANTIES OF LANDLORD.
To induce Tenant to execute, deliver and perform this Lease and without regard to any
independent investigations made by Tenant, Landlord represents and warrants to
Tenant on and as of the Effective Date as follows:
(a) Landlord has full capacity, right, power and authority to execute, deliver and
perform this Lease and all documents to be executed by Landlord pursuant hereto,
and all required action and approvals therefor have been duly taken and obtained.
The individuals signing this Lease and all other documents executed or to be
executed pursuant hereto on behalf of Landlord are and shall be duly authorized to
sign the same on Landlord's behalf and to bind Landlord thereto. This Lease and all
documents to be executed pursuant hereto by Landlord are and shall be binding
upon and enforceable against Landlord in accordance with their respective terms,
and the transaction contemplated hereby will not result in a breach of, or constitute a
default or permit acceleration of maturity under, any indenture, mortgage, deed of
trust, loan agreement or other agreement to which Landlord or the Demised
Premises is subject or by which Landlord or the Demised Premises is bound.
17
(b) There are no claims, causes of action or other litigation or proceedings
pending or, to the best of Landlord's knowledge, threatened in respect to the owner
ship, operation or environmental condition of the 'Building or Demised Premises or
any part thereof (including disputes with mortgagees, govern mental or quasi -
governmental authorities, utility companies, contractors, adjoining land owners or
suppliers of goods or services), except for claims which are fully insured and as to
which the insurer has accepted defense without reservation.
29. MISCELLANEOUS.
(a) Any and all discussions and negotiations between Landlord and Tenant have
been merged into this Lease. No rights are conferred upon Landlord until this Lease
has been executed by Tenant. Any and all representations and agreements by
either of the parties or their agents made during negotiations prior to execution of
this Lease and which representations are not contained in this Lease shall not be
binding upon either of the parties.
(b) Landlord and Tenant represent and warrant to each other that they have not
had any dealings with any real estate brokers, finders or agents in connection with
this Lease.
(c) All terms and words used in this Lease, regardless of the number and gender
in which they are used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context or sense of this Lease or any portion of this Lease may require, the same as
if such words had been fully and properly written in the number and gender.
(d) This Lease may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but such counterparts
together shall constitute but one and the same instrument.
(e) Landlord and Tenant are not and shall not be considered joint venturers nor
partners and neither shall have power to bind or obligate the other except as set
forth in this Lease.
M If any provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons whose circumstances
are other than those as to which it is held invalid or unenforceable, shall not be
affected thereby.
(g) No modification, alteration or amendment of this Lease shall be binding
unless in writing and executed by both parties hereto.
(h) The headings to the Sections of this Lease are inserted only as a matter of
convenience and for reference, and in no way confine, limit or proscribe the scope or
intent of any Section of this Lease, nor in any way affect this Lease.
0) This Lease shall be binding upon and inure to the benefit of the parties and
any subtenants and their heirs, administrators, executors, successors and assigns.
0) Time is of the essence of this Lease and each provision; provided, however,
if the final (but not any interim) date of any period set forth herein falls on a
Saturday, Sunday or legal holiday under the laws of the United States of America,
the final date of such period shall be extended to the next business day.
(k) If Landlord or Tenant is delayed or prevented from performing any of its
obligations under this Lease by reason of strike, lockouts, labor troubles, failure of
power, riots, insurrection, war, acts of God or any other cause beyond that party's
control (collectively, "Force Majeure"), the period of such delay or such prevention
shall be deemed added to the time period herein provided for the performance of
any such obligation by that party.
(I) This Lease shall be governed by and construed and interpreted in
accordance with the laws of the state in which the Building is located.
(m) Each party hereto has reviewed and revised (or requested revisions of) this
Lease, and therefore any usual rules of construction requiring that ambiguities are to
be resolved against a particular party shall not be applicable in the construction and
interpretation of this Lease or any Exhibits hereto.
(n) Whenever either party is entitled to exercise its discretion hereunder, or to
give or withhold its consent to some proposed action, each party agrees that it shall
act reasonably in exercise its discretion, or withholding its consent, unless the
relevant provisions of this Lease permit such party to act in its absolute discretion or
sole judgment.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed on the dates set forth below, intending the same to be effective as of the
Effective Date.
LANDLORD:
CITY OF KALISPELL, MONTANA, a
municipal corporation
TENANT:
WELLS FAROO BANK, N.A., a national
banking association
_ g
N7qiGK' f Name:;
Title: c i TV .K A &j A co.diZ Title: _
By
Name:
Title:
Date: 2005 Date:
, 2995
19
EXHIBIT
LEGAL DESCRIPTION OF REAL PROPERTY
The land referred to in this policy is situated in the State of Montana, County of Flathead and is described as follows:
Lot 14 and the Southerly Half of Lot 15 of Block 57 of Kalispell, Montana,
according to the plat thereof on file in the office of the County Clerk and
Recorder of Flathead County, Montana, particularly described as follows
Beginning at the Southwest corner of said Lot 14; thence
Northwesterly along the Westerly boundary of said Lot 14 and the Southerly
Half of Lot 15, a distance of 37.5 feet; thence
Northeasterly parallel with the Southerly boundary of said Lot 15, a distance
of 140.0 feet to the Easterly boundary of said Lot 15; thence
Southeasterly along the Easterly boundary of the Northerly Half of Lot 15,
and Lot 14, a distance of 37.5 feet to the Southeast corner of said Lot
14; thence
Southwesterly along the Southerly boundary of said Lot 14, a distance of 140.0
feet to the Southwest corner of said lot, the Place of Beginning.
Al
Fart of Lots 15 , 16 and 17 of Block 57 of Kalispell, Montana, according to
the recorded plat thereof, records of Flathead County, Montana, described
as follows :
Commencing at the Northwest corner of said Block 57; thence
Southeasterly along the Westerly boundary of said Block 57, a distance of
49.00 feet to a point which is the Point of Beginning of the tract to be
described herein; thence
Northeasterly and parallel with the North boundary of said Lot 16, a distance
of 69.00 feet to a point on the West face of the Strand Building; thence
Southerly and parallel with the West boundary of said. Block 57, a distance of
0.54 feet; thence
Easterly and parallel with the North boundary of said Lot 16, a distance of
10.37 feet to a point which is in the center of a 91, bearing wall; thence
Southerly and parallel with the West boundary of said Block 57, and along the
center ❑f the aforesaid. 91, bearing wall, a distance of 33.18 feet to a
point which is the Southwest corner of the Strand Building; thence
Northeasterly and parallel with the North boundary of said Lot 15, and along
the South face of the Strand Building, a distance of 60 . 63 feet to a point
on the Easterly boundary of Lot 15 of said Block 57; thence
Southerly along the Bast boundary of said Lot 15 of Block 57, a distance of
4.76 feet; thence
Westerly and parallel with the Northerly boundary of said Lot 15, a dis Lance
of 140.00 feet to a point on the Westerly boundary of Bald Block 57; thence
Northerly along to Westerly boundary of said Block 57 , a distance of 38.50
feet to the Place of Beginning.
---Continued-
A West portion of Lots 17 and 18 in Block 57 of the original Townsite of said
Y,.alispell, more particularly described as a rectangular tract 49 by 69 feet
measured from the Northwest corner of said Lot 18 ,Southward on the West lines
of said lots, a distance of 49 feet, and Eastward on the North line of said
Lot 18, a distance of 69 feet.
The Easterly 100 feet of Lots 1 and 2 and of the Northerly 37 1/2 feet of
Lot 3, all .in Block 57 of Kalispell, according to the recorded plat thereof,
records of Flathead County, Montana, which tract is more particularly described
as follows
Beginning at the Northeast corner of said Lot 1; thence
Southeasterly along the Easterly line of said Lots 11 21 3, a distance of
137 1/2 feet to a point; thence
Southwesterly on a line parallel to the Northerly line of said Lot 3, a
distance of 100 feet to a point; thence
Northwesterly and parallel to the Easterly line of said Block 57, a distance
of 137 1/2 feet to a point on the Northerly line of said Block 57; thence
Nortlaeasterly along the said Northerly line of said Block 57, a distance of
100 feet to the Place of Beginning.
That part of Lot 3 of Flock 57 cf Kalispell, Montana, according -o the plat
thereof on file in the office of the County Clerk and recorder of Flathead
County, Montana, particularly described as follows:
Beginning at a point on the Westerly boundary of ' said Lot 3, which point is
Southeasterly, a distance of 17.5 feet from the Northwest corner of said
Lot 3; thence continuing
Southeasterly along the Westerly boundary of said Lot 3, a distance of 20.0
feet; thence
Northeasterly and parallel with the Northerly boundary of said Lot 3, a
distance of 40.0 feet; thence
North westerly and parallel with the Westerly boundary of said Lot 3 , a
distance of 20.0 feet; thence
Southwesterly, a distance cf 40.0 feet to the Place of Beginning.
-continued-
a-4-051
a o
Lots 7 and 8 of Block 44 of Kalispell, Montana, according to the official
map or plat of said Townsite on file and of record in the office of the
Cou.n.ty Clerk and Recorder of said County of Flathead, and more particularly
described as follows:
Beginning at a point formed by the intersection of the Easterly line of First
Avenue East and the Northerly line of ,second Street, which point is also
the Southwest corner of Lot 7; thence
North 76011, East, a distance of 140 feet to the Southeast corner of Lot 7;
thence
North. 13 * 49 ` West, a distance of 50 feet to the Northeast corner of Lot 8 ;
thence
South 76611, East, a distance of 140 feet to the Easterly line of First
Avenue East, which point is also the Northwest corner of Lot 8; thence
South 13 ' 49' East, a distance of 50 feet to the Point of Beginning.
THE END
44-051
EXHIBIT B.
FLOOR PLAN OF PREMISES
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