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HomeMy WebLinkAbout5G - Old Library Lease CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: November 17, 2003 AGENDA#: 5G PREPARED BY: Kelly Meyer, Administrative Assistant AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO ENTER INTO A LEASE AGREEMENT WITH FLOWERS NATURALLY FOR THE PROPERTY LOCATED AT 16244 EAGLE CREEK AVENUE. DISCUSSION: History: The 4300 square foot old library building located at Main Street and CSAH 21 is currently occupied by Cheryl and Richard Wilfond d/b/a Flowers Naturally. The initial 3 year lease term on the space will expire on December 31, 2003. Over the lease term, Flowers Naturally has been a valuable addition to the Downtown area, and an active participant in the Prior Lake Chamber of Commerce and in many Downtown events. Cheryl and Richard Wilfond have been happy with the space over the past three years and advised the City that they'd like to extend the lease if possible. Current Circumstances: The current lease term was for a three year period, with the option to extend the term on a year to year basis thereafter. The rationale for using a shorter lease term was to afford the City the most flexibility with the property as the redevelopment of the Downtown area occurred. Since that time, as the CSAH 21 Study has progressed, it has become apparent that future improvements to CSAH 21 are at least 3 years out. To that end, the City believes it appropriate to afford Flowers Naturally the stability of an additional three year term. Cheryl and Richard Wilfond d/b/a Flowers Naturally have executed the attached lease agreement subject to City Council approval. The lease agreement includes the following terms: 1. The first floor of the building will be occupied by Flowers Naturally. The basement will continue to be available to the City for storage as needed. 2. The term of the lease is three years beginning January 1, 2004 and extending through December 31,2006. 3. The Lessee or City will have the option to terminate the Lease with six months written notice at any time after July 1, 2005. By providing this option, there is some flexibility for City if the building should need to be removed in connection with any improvements to CSAH 21, and the Lessee has flexibility to move its business if it finds other space, assuming that the building willbe impacted by CSAH 21 improvements. 4. The City will complete various upgrades to the building exterior to improve the security and aesthetic at the north access to the building by installing a new set of double doors and a protective awning for customers and deliveries. The costs of these improvements are estimated at $3950. www.cityofpriorlake.com 1:\COUNCIL\AGNRPTS\2003\FLOWEi6t{bt'l~ ~ Y.~.J2>Qtax 952.447.4245 ALTERNATIVES: RECOMMENDED MOTION: 5. The lease amount will increase 5% each year over the three year term. ($2938 in year 1, $3082 in year 2, $3225 in year 3). This increase is consistent with the City's other lease agreements. The lessee is responsible for all utility costs. The City will continue to plow the parking lot and sidewalk and allow the lessee to dispose of refuse in the City Hall dumpster. Conclusion: The lease agreement is an updated version of the City's standard lease agreement and was prepared by the City Attorney's office. The proposed lease agreement, executed by the Wilfonds, is attached. The Council should consider whether the terms of the agreement are acceptable. (1) Adopt a Resolution Approving a three-year lease and authorizing an expenditure of up to $3950 from the General Fund Buildings & Plant department to accomplish exterior building improvements outlined herein. (2) Take no action and direct staff to provide additional information. Motion and second to adopt a Resolution approving a three-year lease of the old library building to Flowers Naturally of Prior Lake and authorizing expenditures for building improvements. 1:\COUNCIL\AGNRPTS\2003\FLOWERS NATURALLY LEASE.DOC RESOLUTION 03-XX 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 A RESOLUTON APPROVING A THREE-YEAR LEASE OF THE OLD LIBRARY BUILDING. Motion By: Second By: WHEREAS, Flowers Naturally has a current lease agreement with the City for the4300 square foot library building which expires on December 31,2003; and WHEREAS, Flowers Naturally desires to extend the lease term; and WHEREAS, Flowers Naturally has been a responsible tenant during the initial lease term; and WHEREAS, the City does not foresee a public need for the property over the next three years; and WHEREAS, Flowers Naturally has executed a three-year lease agreement which provides forseveral improvements of the building exterior in accordance with the Downtown Redevelopment Guide. Now THEREFORE, be it resolved by the City Council of the City of Prior Lake that the following are hereby adopted: 1. The recitals set forth above are incorporated herein. 2. The Mayor and City Manager are hereby authorized to execute said Lease Agreement on behalf of the City. 3. Funds for improvements' associated with this Lease Agreement in an amount not to exceed $3950 are allocated from the General Fund Buildings and Plant department. PASSED AND ADOPTED THIS 17TH DAY OF NOVEMBER, 2003. YES NO Haugen Haugen Blomberg Blomberg LeMair LeMair Petersen Petersen Zieska Zieska City Manager, City of Prior Lake www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into this _ day of , 2003 by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as "City'), and FLOWERS NATURALLY} INt. [FULL CORPORATE NAME], a Minnesota corporation (hereinafter referred to as 'Lessee'). In consideration of the mutual covenants and promises hereinafter set forth, the sufficiency of which are not disputed, the CITY and LESSEE do hereby agree as follows: 1. Description of the Premises. CITY does hereby lease to LESSEE and LESSEE does hereby lease and take from CITY, portions of the building described herein (hereinafter"Building') and located at 16244 Eagle Creek Avenue, Prior Lake, Minnesota 55372 (hereinafter collectively referred to as "Leased Premises'). a. LESSEE shall be entitled to occupy 4,300 square feet on the first floor of the Building and the bathrooms on the lower level. b. CITY shall be entitled to use rooms on the lower level of the Building if said use by CITY does not negatively impact LESSEE's use of Lease Premises. These rooms include the three large storage rooms and the old bank vault. c. LESSEE shall be entitled to the use of ten (10) regular parking stalls and two (2) handicapped parking stalls immediately adjacent to the north side of the building. 2. Term. Subject to Paragraph 22 below, this Lease Agreement shall be for a term of three (3) years commencing on the 1st day of January, 2004 and terminating on the 31st day of December, 2006. 3. Use of Leased Premises. The Leased Premises shall be used and occupied by Lessee solely for retail and office purposes and for no other purpose, and such use and occupancy shall be in compliance with all applicable federal, state and local laws, statutes, ordinances and governmental rules a!ld regulations. 4. Buildina Improvements to Leased Premises: City. CITY shall, prior to December 31, 2003, at its sole cost and expense, replace and install new double doors on the north side of the Leased Premises and, in addition, install an awning on the newly installed north doors. No other improvements are intended to be made to the Leased Premises, and LESSEE agrees and acknowledges that it accepts the Leased Premises on the commencement date of this Lease Agreement in an lias-is, where-is" condition," subject to the installation of the improvements as noted above in this paragraph. 5. Rent and Security Deposit. LESSEE shall pay monthly rent in the amount of Two Thousand Nine Hundred Thirtv-EiQht and 00/100 Dollars ($2,938.00) per month for the Leased Premises for the calendar year 2004; Three Thousand Eiqhty- Two and 00/100 Dollars ($3,082.00) per month for the Leased Premises in calendar year 2005; and Three Thousand Two Hundred Twenty-Five and 00/100 Dollars ($3,225.00) per month for the Leased Premises in calendar year 2006. Rent payments shall be made on a monthly basis and paid by the 10th day of the ON: 196047, v.2 1 given month in which payment is due. A late fee of $25.00 per day shall be assessed for payments received after the 10th day of the month. All rental payments required hereunder shall be paid to the CITY at 16200 Eagle Creek Ave. S.E., Prior Lake, MN 55372, Attn: Ralph Teschner, Finance, or such other place as determined by the CITY. The LESSEE shall pay a security deposit in the total amount of $3,225.00, which amount shall be paid as follows: a. The sum of $2,795.00, which heretofore has been paid by LESSEE to the CITY, and which amount CITY shall retain as part of the Security Deposit required hereunder; and b. The additional sum of $430.00, payable to the CITY on or before January1, 2004. 6. Other Costs: Net Lease. LESSEE shall be responsible for the payment of all sewer, water, gas, electric, telephone, refuse, custodial services and supplies and electrical and telephone modifications to the Leased Premises necessary for LESSEE's use of the Leased Premises. It being the intention and purpose of the respective parties hereto that this Lease shall be a "Net Lease" with CITY as lessor, all costs or expense of whatever character or kind, general or special, ordinary and extraordinary, foreseen or unforeseen and of every kind and nature whatsoever that may be necessary in or about the operation of said Leased Premises and the LESSEE's authorized use thereof during the entire term of this Lease shall be paid by LESSEE and all provisions of this Lease relating to expenses are to be construed in the light of such intention and purpose to construe this Lease as a "Net Lease." For additional rent, the LESSEE shall pay all costs and expenses of any nature attributable to the Leased Premises during the lease term, including, but not limited to insurance premiums, utilities and cost of maintenance. The LESSEE shall pay any and all insurance which LESSEE desires to insure its own property which is located and situated on and within the Leased Premises. CITY shall not be liable to LESSEE for any loss or damage of any kind whatsoever caused or sustained by reason of CITY's inability to obtain energy or utilities for any reason beyond CITY's control. 7. Insurance. The LESSEE shall maintain in full force and effect during the term hereof, a policy of public liability insurance in a form acceptable to the City Attorney. The minimum limits of liability of such insurance shall be $1,000,000 for injury or death to anyone person, $1,000,000 for injury or death to more than one person and $500,000 for property damage. LESSEE shall be responsible for the payment of any and all other insurance which it desires, and/or a public liability policy which insures LESSEE above the limits as required hereunder of the CITY. The CITY shall be named as an additional insured in the public liability policy. Said policy shall contain a provision that the insurance cannot be terminated without 30 days written notice by the insurance company to the CITY. LESSEE shall provide CITY with a Certificate of Insurance which conforms with the provisions herein, before LESSEE may operate at the Leased Premises. The CITY shall carry and cause to be in full force and effect a fire and extended coverage insurance policy on the Building containing the Leased Premises, but not the contents owned, leased to, or otherwise in possession of the LESSEE. Said fire and extended coverage insurance policy on the Building covers, without any rating surcharge, a wide range of uses. If LESSEE refuses to follow directions from the Fire Inspection Bureau, or general housekeeping causing City's fire and extended coverage insurance premiums for the Building to increase, then the LESSEE agrees to pay to CITY any increase in CITY's premium. 7.1 Waiver of SubroQation. To the extent such waiver does not void or diminish the coverage under any policy, LESSEE and CITY hereby waive any rights each may have against the other on account" of any loss or damage occasioned to LESSEE or CITY, as the case may ON: 196047, v.2 2 be, or their respective property, to the extent such loss or damage is covered by insurance covered by either LESSEE or CITY. 8. Indemnity. The LESSEE agrees that it will, at all times, indemnify and save, protect and keep harmless the CITY and the Leased Premises from every and all costs, loss, damage, liability, expense, penalty and fine whatsoever, which may arise from or be claimed against the CITY or the Leased Premises by any person or persons, for any injuries to person or property, or damage of whatever kind or character to the extent such damages are consequent upon or arising from the use or occupancy of said Leased Premises by the said LESSEE, or consequent upon or arising from any neglect or fault of the LESSEE or the agents and employees of LESSEE, in the use and occupancy of the Leased Premises, or consequent upon or arising from any failure by the LESSEE so to comply and conform with all laws, statutes, ordnances and regulations of the United States, the State of Minnesota or the City, now or hereafter in force; and if any suits or proceedings shall be brought against the CITY, or the said Leased Premises, on account of any alleged violation thereof, or failure to comply and conform therewith or on account of any damage, omission, neglect or use of said premises by the LESSEE, or the agents and employees of the LESSEE, or any other person on said premises, the LESSEE agrees that the LESSEE will defend the same, and will pay whatever judgments may be recovered against the CITY or against said Lease Premises on account thereof. 9. Maintenance. The LESSEE shall be responsible for making all nonstructural repairs to the Leased Premises except those described in Paragraph 4 of this Lease Agreement. The LESSEE agrees to keep the Leased Premises in a clean, orderly and sanitary condition and will neither do nor permit to be done therein anything which is in violation of insurance policies on the Building or that is contrary to any federal, state or local law, ordinance or regulation thereof. The LESSEE will neither commit nor suffer waste to the Building or to the Leased Premises. The maintenance and repair obligations of the LESSEE specifically extend to all interior walls, interior and exterior windows, flower beds, turf areas and to all doors and electrical fixtures that serve the Leased Premises. LESSEE is responsible for planting and maintaining vegetation acceptable to the City along the CSAH 21 side of the building between the sidewalk and building, the window box at the front of the building and the planting beds along the northeast portion of the building. LESSEE is responsible for acquiring and installing signage for Main Street and CSAH 21 exterior walls reading "Flowers Naturally". Size and content of such signs shall be in accordance with Exhibit C and the location of installation shall be approved in advance by the City. The CITY shall, at its own expense, keep in good order, safe condition and repair, the structural parts of the Building -(including, but not limited to, roof, exterior walls, foundation and floor and the Buildings heating and cooling systems) in which the Leased Premises are located, except where repairs to the structural parts are required due to the fault or negligence of the LESSEE, its employees or invitees, in which case the LESSEE shall be responsible for reimbursing the CITY for the costs of such repairs. 10. Appearance and Access. CITY, to the extent obligated herein, and LESSEE mutually agree to keep the grounds, Building, and the Leased Premises in a condition of good repair and appearance as their respective responsibilities and rights require. LESSEE agrees to keep all of its trash containers, refuse and waste within the Leased Premises and agrees not to litter any of the grounds or entries. ON: 196047, v.2 3 LESSEE acknowledges that, upon occupancy of Leased Premises, LESSEE will cause the Leased Premises to be inspected in order to ascertain the condition thereof, that any objections thereto not delivered in writing to the CITY within ten (10) days after occupancy shall be deemed waived; and that no representations, either expressed or implied, have been made regarding the quality or condition or suitability of the Leased Premises for the purposes for which it is leased. 11. Condemnation. The parties hereto agree that if the Leased Premises, or any part thereof, shall be taken or appropriated for any public use by any public or quasi-public authority during the term of this lease, that this lease shall terminate as of the date of such appropriation and all condemnation proceeds shall be the sole property of the City. It is further agreed that if this lease is terminated because of any such taking of the Leased Premises, that the monthly rental for the month in whiC;;h the condemnation taking occurs shall be prorated between the parties hereto. 12. Assignment. The LESSEE shall not have the right to assign its interest in this Lease Agreement or to sublet the Leased Premises, or any part thereof without the prior written consent of the CITY, except that LESSEE may once assign this Lease Agreement to an entity which is an affiliate or parent of LESSEE. Any approved assignment or sublet shall be subject at all times to the provisions of this Lease Agreement, provided, however, in such an instance, LESSEE shall at all times remain obligated hereunder, the same as though no assignment or sublease had occurred. LESSEE agrees that it will not permit any assignment hereof by operation of law without the consent in writing of the CITY, first hand and obtained. No assignment for the benefit of creditors or by operation of law shall be effective to transfer any rights to the said assignee without the written consent of the CITY, first hand and obtained, which consent shall not be unreasonably withheld. 13. Breach of LESSEE. If the LESSEE shall default hereunder and such default shall continue for a period of fifteen (15) days after written notice from the CITY of such default, then it shall be lawful for the CITY to terminate this Lease Agreement and enter into and take possession of the Leased Premises and remove all persons and their property therefrom; provided that if the default be of such a nature that it may require more than fifteen (15) days to cure, the period to cure may be extended with the written permission of the CITY. Said time to cure default may be extended for such period of time as specified by CITY's written notice to LESSEE. The LESSEE shall cure any default with due diligence and within the time period provided herein. 14. Alterations and Improvements; LESSEE. LESSEE shall not make any alterations and/or improvements to the Leased Premises without the prior written consent of the CITY. If the LESSEE shall desire to make any such alterations or improvements, an accurate description shall first be submitted to and approved by the CITY and shall be done by the LESSEE at its own expense. CITY's approval shall not be unreasonably withheld. LESSEE agrees that all such work shall be done in a good, workmanship-like manner, and in conformance with applicable building codes, that the structural integrity of the Building shall not be impaired, and that no liens shall attach to the Leased Premises by reason thereof. The LESSEE shall and will in each instance save the CITY and said Leased Premises forever harmless and free of all costs, damages, losses and liabilities of every kind and character which may be claimed, asserted or charged, including liability to adjacent owners based upon the acts or negligence of said LESSEE or their agents, contractors or employees, and will preserve and hold the CITY and said Leased Premises forever free and clear from liens for labor and material furnished. Any such alterations shall become the property of the CITY as soon as they are affixed to the Leased Premises and all right, title and interest therein of the LESSEE shall immediately cease ON: 196047, v.2 4 unless otherwise stated in writing. The LESSEE however, shall remain the owner of any installed trade fixture and shall have the right to remove such trade fixture at the expiration or termination of this Lease Agreement, so long as the Leased Premises shall be restored to their original condition at the termination or expiration of this Lease Agreement and subject to the provisions provided in Paragraph 4 herein. 15. Mechanic's Lien. Should any mechanic's or other liens be filed against any portion of the premises by reason of LESSEE's acts or omissions or because of a claim against LESSEE, LESSEE shall cause the same to be canceled and discharged of record by bond or otherwise within ten (10) days after notice by CITY. Failure to do so shall be considered a breach of this Lease. For the purpose of this paragraph, the ten (10) day notice provision shall supercede the notice provision set out in paragraph 12. 16. Termination. Upon termination of this Lease Agreement, LESSEE shall deliver up said premises to the CITY in as good a condition as said Leased Premises shall be in as of the date of tender of possession subject to ordinary wear, tear and decay, the LESSEE agreeing not to leave the Leased Premises in an irregular or unkempt manner. 17. Rules and Regulations. The LESSEE shall perform, observe and comply with all Building codes, rules and regulations of the CITY with respect to the safety, care and cleanliness of the Leased Premises, and the preservation of good order thereon, and, upon written notice thereof to LESSEE, LESSEE shall perform, observe and comply with any changes, amendments or additions thereof as from time to time shall be established and deemed advisable by the CITY. Said rules and regulations shall be in writing. 18. Entry. During the ninety (90) days prior to the expiration of the lease termof this Lease or upon written notice, the CITY or its agents may exhibit the Leased Premises to prospective lessees and/or purchasers. . 19. Notices. All notices, consents, demands and requests which may be or are required to be given by either party of the other, shall be in writing and sent by United States registered or certified mail, with return receipt requested, addressed to LESSEE at the Leased Premises and to the CITY at 16200 Eagle Creek Ave. S.E., Prior Lake, MN 55372; attention City Manager. The date which said registered or certified mail is mailed by the CITY shall be conclusively deemed to be the date on which a notice, consent, demand or request is given or made. The above address of a party may be changed at any time, or from time to time, by notice given by said party to the other party in the manner herein above provided. 20. Claims. The LESSEE will make no claim against the CITY for any loss of or damage to property and/or the Leased Premises caused by theft, burglary, water, gas, electricity or other means. 21. Fire Repair. In the event of damage to the Leased Premises by fire, the elements or other casualty, the CITY shall repair the damage with reasonable dispatch. If the damage renders the Leased Premises untenantable in whole or in such part that it is impractical to conduct business therein, the rent shall wholly abate until the damage has been repaired. If the extent of the damage is such that it is not financially prudent to repair or rebuild Leased Premises, the CITY may terminate the Lease Agreement, in which case the LESSEE agrees to waive any and all claims or whatever nature it may have against the CITY. 22. Quiet Enjoyment. LESSEE, upon payment of the rent herein reserved and upon performance of all of the terms, covenants and conditions of this Lease Agreement by it to be kept and ON: 196047, V.2 5 performed, shall at all times during the term hereof or during any extension or renewal hereof, peaceably and quietly enjoy the Leased Premises without any disturbance from CITY. LESSEE understands and agrees the use of the Building may not be suitable for the purposes for which LESSEE is leasing Leased Premises. Upon expiration of the Lease term or earlier termination of the Lease because of a breach of this Lease Agreement or early termination as hereinafter provided, LESSEE shall surrender the Leased Premises in good condition and repair, except for reasonable wear and tear. 23. Early Termination of Lease Agreement. Notwithstanding anything herein to the contrary, either CITY or LESSEE may terminate this Lease Agreement at any time on and after July 1, 2005, by giving the other party written notice six (6) months prior to the intended early termination date. At the termination date as specified by notice given in accordance with this paragraph, this Lease Agreement shall terminate and LESSEE shall vacate the Leased Premises in accordance with Paragraph 22 above. In the event that neither party elects to terminate this Lease Agreement in accordance with this paragraph, then, subject to Paragraph 22 above, the lease term shall continue as otherwise provided in Paragraph 2 above. 24. Holding Over. If LESSEE shall hold over the Leased Premises or any part thereof after the expiration of the term hereof or the date beyond the early termination date as provided for in the preceding paragraph, such holding over shall be construed only to be a tenancy from month to month subject to all of the covenants, conditions and obligations hereof except that the rent shall increase by five percent (5%) of the amount identified in Paragraph 5 herein plus any increase in operating.expenses. Nothing herein shall be construed to give LESSEE any rights to hold over or to continue in possession of the Leased Premises. 25. Bankruptcy; Non-Compliance With Lease Terms and Conditions. It is further agreed between the CITY and LESSEE that this lease is made upon the condition that if the LESSEE shall neglect or fail to keep, observe and perform any of the covenants and agreements contained in this lease, which are to be kept, observed or performed by the LESSEE, or if the leasehold interest of the LESSEE shall be taken on execution or other process of law, or if the LESSEE shall petition to be or be declared bankrupt or insolvent according to law or if the LESSEE shall vacate said premises or abandon the same during the term of this lease, then and in any of said cases CITY may immediately or at any time thereafter, and without further notice or demand, enter into and upon said premises, or any part thereof, in the name of the whole, and take absolute possession of the same fully and absolutely, without such reentry working a forfeiture of the rents to be paid and the covenants to be performed by the LESSEE for the full term of this lease, and may at the CITY's election lease or sublet said premises, or any part thereof, on such terms and conditions and for such rents and for such time as the CITY may elect, and after crediting the rent actually collected by the CITY from such reletting on the rentals stipulated to be paid under this lease by the LESSEE from time to time, collect from the LESSEE any balance remaining due from time to time on the rent reserved under this lease, charging to the LESSEE such reasonable expenses as the LESSEE may expend in putting the premises in tenantable condition. Or the CITY may at its election and upon written notice to the LESSEE declare this lease forfeited and void, and may thereupon reenter and take full and absolute possession 'of said premises as the owner thereof, and free from any right or claim of the LESSEE, or any person or persons claiming through or under the LESSEE; and such election and reentry last mentioned shall be and constitute an absolute bar to any right to enter by the LESSEE upon the payment of all arrearages of rent and costs after a dispossession under any suit or process for breach of any of the covenants of this lease, and the commencement by the CITY of any action to recover possession of said premises aforesaid shall be deemed a sufficient notice of election of said CITY to treat this lease as void and ON: 196047, V.2 6 terminated, without the written notice above specified, unless the LESSEE shall in writing, before beginning such proceeding, notify the LESSEE that after obtaining such possession the LESSEE will continue to look to the CITY for the performance of this lease and will submit the premises on the LESSEE's account, in the manner as above provided. 26. Nondiscrimination. In connection with the execution of this Lease Agreement, the LESSEE agrees that it and any of its subcontractors, material suppliers and vendors shall not discriminate against any employee or applicant for employment because of race, creed, age, sex religion or national origin. The LESSEE will take affirmative actions to insure that applicants are employed, and that employees are treated during employment without regard to race, color, sex or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of payor other forms of compensation, and selections for training, including apprenticeship. 27. Certificate of Compliance for Public Contract. If LESSEE has employed more than twenty (20) full-time employees in Minnesota at any time during the previous twelve (12) months, it shall have an affirmative action plan for the employment of minority person, women and the disabled that has been approved by the Commissioner of Human Rights. The LESSEE shall submit receipt of a Certificate of Compliance issued by the Commissioner signifying that the LESSEE has an approved Affirmation Action Plan by the State Human Rights Department. 28. Compliance with State and Federal Laws. LESSEE, in connection with the execution of this Lease Agreement, assumes compliance with the statements and conditions in the Equal Employment Opportunity Assurance included in Exhibit "B". 29. Attorneys' Fees. Costs and Expenses. Any party to this Lease Agreement which prevails in any proceedings, whether judicial, administrative or otherwise, commenced to enforce any rights, obligations, and/or responsibilities under the covenants, terms and conditions of whatever kind or description, of this Lease Agreement, shall be entitled to recover from the other party, or parties hereto, all costs and expenses, including reasonable attorneys' fees, incurred by reason of such proceedings having been commenced and resolved in whatever fashion in favor of the party claiming such reimbursement hereunder. 30. Entire Agreement. This Lease Agreement represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements, either written or oral. 31. Counterparts and Signatories. This document may be signed in one or more counterparts which, when taken together, shall be one and the same agreement. The persons signing this Lease Agreement have been duly authorized by their respective entities to enter into this Lease Agreement. 32. Headings. The headings herein are inserted only for convenience and reference and shall in no way define, limit or describe the intent of this Lease Agreement. 33. Governing Law I Jurisdiction. This Lease Agreement shall be governed by the laws of the State of Minnesota and such laws shall govern all questions and interpretations concerning the validity and construction of this Lease Agreement and the legal relations among the parties and performance under it. If any provision of this Lease Agreement is held invalid, illegal or unenforceable, the remaining provisions will not be affected. ON: 196047, v.2 7 34. Exhibits. This instrument contains all of the agreements made between the parties and may not be modified orally or in any manner other than by agreement, in writing, signed by all parties to this Lease Agreement. The following Exhibits listed below are made part of this Lease Agreement as if fully set forth herein: Exhibit A -- Letter from Advance Certified Thermography to Robert Hutchins dated . January 3, 2000 Exhibit B -- Equal Employment Opportunity Assurance Exhibit C -- Sign Design 35. Other Provisions. The invalidity or unenforceability of any provision hereof shall not affect or impair the validity of any other provision. 36. Waiver. One or more waivers of any covenant, term or condition of this Lease Agreement by the CITY shall not be construed by the LESSEE as a waiver of a subsequent breach of same covenant, term or condition. The failure or delay on the part of the CITY to enforce or exercise at any time any of the provisions, rights or remedies of this Lease Agreement shall in no way be construed to be a waiver thereof nor in any way effect the validity of this Lease Agreement or any part thereof or the right of the CITY to thereafter enforce each and every such provision, right or remedy. 37. Binding Effect. This Lease Agreement and the covenants and conditions herein contained, shall inure to the benefit of and be binding upon the CITY, its successors and assigns, shall be binding upon LESSEE, their heirs, successors and assigns, and shall inure to the benefit of LESSEE and only such assigns of LESSEE to whom the assignment by LESSEE has been consented to by CITY. IN WITNESS WHEREOF, ttle parties hereto have caused this Lease Agreement to be executed the day and year first above written. CITY: CITY OF PRIOR LAKE LESSEE: FLOWERS NATURALLY Frank Boyles, City Manager ~:: ~W~ BY: !QJ~ ?r/*~ Its: {/Id P,IU'''~''''T' BY: BY: Jack G. Haugen, Mayor ON: 196047, v.2 8 EXHIBIT "B" Equal Employment Opportunity Assurance FLOWERS NATURALLY hereby agrees that it shall not discriminate agairst any employee or applicant for employment because of race, color, religion, sex, national origin, marital status, status with regard to public assistance, disability, political affiliation or sexual preference. Dated: /1,- () s . i.; ~ LESSEE: FLOWERS NATURALLY ~: ~~D<:~ ON: 196047, v.2 9