SOUTH DAKOTA BOARD OF REGENTS Budget and Finance AGENDA ITEM: 9 G DATE: June 26-28, 2018 ****************************************************************************** SUBJECT SDSU Lease-Purchase Agreement for Pennington County Property CONTROLLING STATUTE, RULE, OR POLICY SDCL 13-49-15 Purchasing and Contracting For Institutions SDCL 13-49-16 Contracts Let in Accordance with Public Agency Procurement Law BOR Policy 5:3 Agreements and Contracts SB53 (2018) Sell Existing Property in Pennington County and Acquire Real Property in Pennington County BACKGROUND / DISCUSSION South Dakota State University requests Board of Regents authorization to enter into a lease-purchase agreement with the SDSU Foundation for improved property in Pennington County for the use and benefit of the SDSU West River Agriculture Center. The leasepurchase of the property was approved by the 2018 Legislature in SB53. The approval stipulated that the lease term may not exceed three million five hundred thousand dollars ($3,500,000) plus accrued interest. The real property is described as follows: Lot A of Menard Subdivision, located in Section 32, Township 2 North, Range 8 East of the Black Hills Meridian, Rapid City, Pennington County, South Dakota. The property is currently owned by First Interstate Bank. The SDSU Foundation is working toward the finalization of the purchase of the property from First Interstate Bank with a projected closing date of August 17, 2018. Commencing on the closing date of the sale to SDSU Foundation, First Interstate Bank will lease back the property from the SDSU Foundation until January 30, 2019. First Interstate Bank will have the option to extend the lease for (2) separate one (1) month extensions. (Continued) ****************************************************************************** DRAFT MOTION 20180626_9-G: I move to authorize the Lease-Purchase Agreement between the Board of Regents and SDSU Foundation for the improved property described as Lot A of Menard Subdivision, located in Section 32, Township 2 North, Range 8 East of the Black Hills Meridian, Rapid City, Pennington County, South Dakota.
SDSU Lease-Purchase Agreement for Property in Pennington County June 26-28, 2018 Page 2 of 2 IMPACT AND RECOMMENDATIONS The Board of Regents on behalf of South Dakota State University will enter into a Lease- Purchase Agreement with the SDSU Foundation for lease of the property from July 1, 2018 through July 1, 2038. Total principal payments under the lease-purchase agreement will be $3,337,500. Upon satisfaction of all lease-purchase payments, the Board of Regents automatically exercises an option to purchase the property for the aggregate lease payments previously made and other good and valuable consideration. The Board of Regents may purchase the property at any time prior to the end of the lease-purchase agreement upon payment of remaining principal and accrued interest. A draft of the Lease-Purchase Agreement between the Board of Regents and SDSU Foundation is attached. The lease interest rate is 4.75%. ATTACHMENTS Attachment I Lease-Purchase Agreement for Property in Pennington County
ATTACHMENT I 3 LEASE-PURCHASE AGREEMENT THIS LEASE-PURCHASE AGREEMENT made this day of 2018, by and between the SOUTH DAKOTA STATE UNIVERSITY FOUNDATION, INC., of Brookings, South Dakota ( Lessor ) and SOUTH DAKOTA BOARD OF REGENTS on behalf of South Dakota State University for its EXTENSION division (collectively Lessee ). NOW, THEREFORE, in consideration of the mutual benefits to be enjoyed by the parties hereto, the Lessee and the Lessor hereby agree as follows: That the Lessor, for and in consideration of the Lease-Purchase payments agreed to be paid by Lessee as hereinafter specified and the covenants herein contained, leases to the Lessee, the real Property herein described, being situated in Pennington County, South Dakota, to-wit: Lot A of the Menard Subdivision, located in Section 32, Township 2 North, Range 8 East of the Black Hills Meridian, Rapid City, Pennington County South Dakota. Together with all improvements located thereon ( Appendix A ) and all rights, privileges and appurtenances to the same as hereinafter provided and subject only to those conditions hereinafter set forth. 1. Term. Lessee shall have and hold the above-described premises from July 1, 2018 and continue through July 1, 2038, subject to the conditions hereinafter set forth. 2. Lease-Purchase. a. Total Purchase Price - Principle of $3,337,500: Lessee agrees to pay Lessor, and Lessor agrees to sell the above described real property to Lessee, a total purchase price of $3,370,500 principal with accrued interest at the rate of 4.75%. This Total Purchase Price is inclusive of Short Term and Long Term obligations set forth herein in Sections 2.c and 2.d. b. Lessor and Lessee hereby agree that the Office Space Lease originally executed by and between Lessee and its representatives and First Interstate Bank on October 1, 2015, which transferred to Landlord by purchase of the Building on, 2018, and all terms and conditions contained therein are hereby terminated by the Parties to this Lease Purchase Agreement as of the Effective Date of this Agreement. i. The Lessor and Lessee expressly agree that Lessor has an Office Space Lease with Tenant, First Interstate Bank, for specified portions of the real property until January 30, 2019, subject to First Interstate Bank s option to extend the Lease for two (2) separate, one (1) month extensions. Sixty (60) days prior notice to Lessor to exercise extension option is required. Terms of Office Space Lease are set forth in the Lease between Lessor and First Interstate Bank set forth in Appendix C and incorporated herein by this reference. ii. First Interstate Bank s rent during the term of their lease is all costs of gas, water, electricity, landscape maintenance, and snow removal. These costs shall
ATTACHMENT I 4 not be the responsibility of Lessee during the term of First Interstate Bank s occupancy and lease. Regardless of any obligation set forth herein, Lessee shall not be responsible for any costs, terms, or responsibilities of First Interstate Bank as set forth in Appendix C. c. Short Term - $667,500_Principal: Lessee agrees to pay Lessor as semi-annual installments the sum of $30,038 per year, with each semi-annual installment being paid in the amount of $15,019 on or before July 1 st and January 1 st of each year. The first installment is due on or before July 1, 2018. Lessee may pay the remaining principal of the $667,500 and the 4.75% accrued interest to date at any time without penalty. d. Long Term $2,670,000 Principal: Lessee agrees to pay Lessor in semi-annual installments the sum of $203,868 per year, with each semi-annual installment being paid in the amount of $101,934 on or before July 1st and January 1st of each year. The first installment is due on or before July 1, 2018. Lessee may pay the remaining principal of the $2,670,000 and the 4.75% accrued interest to date at any time without penalty. e. Upon Satisfaction of all Lease-Purchase payments set forth above, the Lessee automatically exercises an option to purchase the hereinbefore described real property for the aggregate lease payments previously made and other good and valuable consideration. Lessee may purchase the above described real property prior to January 1, 2038 if the Lessee can pay sufficient funds to Lessor the above amounts in full with accrued interest only to date of principal payoff. 3. Alterations and Trade Fixtures. During the term of this lease, Lessee may make improvements without obtaining prior consent of Lessor. Any improvements shall become a part of the real estate itself and Lessee shall not be entitled to reimbursement from Lessor for said improvements. This shall include any improvements made by Lessee prior to the date of this agreement. 4. Taxes, Special Assessments, and Insurance. Lessee shall pay all real property taxes, if any, and assessments. Lessee shall provide property and liability insurance in an amount equal to the replacement value attributable to the premises described above. 5. Utilities, Debris Removal, Etc. Lessee shall pay all utilities, including water, gas, electric, propane and telephone. Lessee shall be responsible for all operating costs, including, but not limited to, garbage and debris removal, weed control, fencing and snow removal. 6. Repairs and Modifications. Lessee shall keep the property including all components and systems comprising its infrastructure, buildings, structures and grounds, in good repair and in clean, sanitary and safe condition, ordinary wear and tear excepted, and if necessary, or if required by proper governmental authority, shall make modifications or replacements thereof, and Lessee shall repair, modify, replace or renovate such improvements to restore or to maintain their good condition except as otherwise the responsibility of Tenant in accordance with Appendix C. a. A component equal to one percent (1%) of the Fair Market Value of the Facility, which sum Lessee agrees to fund and maintain, and Lessor agrees to hold, as a capital
ATTACHMENT I 5 expenditure sinking fund ( Sinking Fund ). For purpose of this agreement, Fair Market Value shall mean the original purchase price of the Facility as adjusted for inflation under the Building Cost Index reported by the Engineering News Record. The following guidelines shall apply to the Sinking Fund: i. The roof, walls, electrical, plumbing, heating, air conditioning and the structural portion of the Facility shall be maintained in a good state of repair by the Lessee. ii. If it becomes necessary to undertake capital repairs, replacement or improvements of the Facility, Lessee will contract for such work to be paid from the Sinking Fund, or, with consent of the Lessor, to be paid for through a temporary adjustment to the lease payment, sufficient to cover the actual costs to finance and to construct such repairs, replacements or improvements. iii. Upon termination of this agreement, Lessor shall disburse or transfer any unused portion of the Sinking Fund as directed by the Lessee. 7. Inspection. Lessee agrees to permit Lessor or Lessor s agents to inspect or examine the leased premises at any reasonable time and to permit Lessor to make such repairs to the leased building which Lessor may deem desirable or necessary for its safety or preservation and which Lessee has not covenanted herein to do or has failed so to do. 8. Lessee s Liability. Lessee agrees to be responsible for and to relieve Lessor from all liability by reason of any damage or injury to any person or property which may arise from or be due to the use of misuse of any part of the rented premises or failure to properly maintain the same. 9. Lessee s Liability Insurance. Lessee, at its expense, shall provide and keep in force for the benefit of Lessor, to the extent allowed by South Dakota law comprehensive general liability coverage, insuring the interest of Lessor and Lessee with minimum limits of liability in respect of bodily injury or death of $1,000,000.00 for each person and $1,000,000.00 for each occurrence, and respect of property damage of $500,000.00 for each occurrence. Lessor shall be included as a named insured on said insurance policy. 10. Assignment. Neither this lease nor leased premises may be sublet or assigned by Lessee without the written consent of Lessor, which consent shall not be unreasonably withheld. 11. Default. If said rent or any of the covenants and agreements herein contained on the part of Lessee shall at any time be in arrears, unpaid or unfulfilled and shall remain in such status sixty (60) days after the giving of notice in writing thereof by Lessor to Lessee, Lessee may exercise Option to purchase set forth in Section 16 herein. Failure to exercise said option will result in termination of this Agreement. Upon termination, Lessor may enter in and upon said premises and again have, possess and enjoy the same, subject to Lessee s right to remove property. 12. Quiet Environment. Lessor agrees that upon compliance with the terms and conditions of this lease Lessee shall and may peacefully and quietly have, hold, and enjoy the leased premises for the term of this lease and any renewal of said term.
ATTACHMENT I 6 13. Waiver of Subrogation. Lessor and Lessee hereby agree that neither shall be liable to the other for loss arising out of damage to or destruction of the demised premises or the contents thereof when such loss is caused by any of the perils included within the standard form of fire and extended coverage insurance. This agreement shall be binding whether or not such damage or destruction shall be caused by the negligence of either Lessor or Lessee or their agents, servants, or employees, and further, any and all right of subrogation by any insurance carrier is hereby waived. The parties hereto will sign any and all documents necessary to implement his provision. 14. Lessor s Interest Not Subject to Mechanic s Liens. Lessee agrees not to permit any mechanic s liens to be legally placed of record against said real estate or any buildings or structures located thereon; and if any such liens shall be filed, Lessee agrees to have them removed. No person who furnishes work, labor, services or materials at the request or order of Lessee shall have a lien on said real estate or any buildings or structures located thereon which is paramount to the rights of Lessor under this lease so long as this lease is in existence. Lessee shall have no authority to create or permit to be created any lien for labor or material which shall have the effect of placing a cloud on the title of Lessor in and to said real estate and any buildings or structures located thereon. All such material men and laborers and mechanics shall have the right to demand payment for their materials or labor from Lessee only. The filing of a mechanic s lien shall not, of itself, constitute a default by Lessee, provided that Lessee shall within ninety (90) days after notice of the filing of such lien, extinguish, cancel or release such lien or post bond with Lessor to guarantee her against loss by reason thereof, and provided Lessee shall have the right to dispute the amount of validity of such lien by diligently taking proper legal steps to remove said lien. If any mechanic s lien shall be placed on record by reason of any order or contract of Lessor, then the provisions of this lease applicable to the duties of Lessee with respect to mechanic s liens shall be incumbent upon Lessor to perform. At Lessor s sole discretion, Lessee may procure a mechanic s lien waiver satisfactory to Lessor pertaining to any improvements. 15. Zoning and Ordinances and Covenants. Lessee agrees to comply with all zoning requirements, restrictive covenants and conditions, and city, county and state laws, statutes and ordinances. 16. Option to Purchase. Upon payment of all monies set forth in Section 2 of this Agreement, the Lessee automatically exercises an option to purchase the hereinbefore described property for $1.00. If the Lessee intends to exercise Option to Purchase, prior to January 1, 2038, Lessee will give sixty (60) days notice in writing to the Lessor, which notice may be given to the President & CEO of the South Dakota State University Foundation, or his Successor. Lessor shall convey the demised premises by Warranty Deed, free and clear of all liens and encumbrances, except those that Lessee may have created or suffered, and excepting any taxes, assessments, rates, duties, imposts, or charges that may have become a lien against the premises since the date of this Lease Agreement. Upon exercise of the Option, the Lessor agrees to furnish at the expense of Lessee a policy of title insurance issued by a title insurance company authorized to do business in the State of South Dakota containing only the printed exceptions usually and customarily found in such policies.
ATTACHMENT I 7 17. The Lessor agrees that the continued rental of the hereinbefore described property for the terms hereinbefore specified is dependent upon receipt of both funds and expenditure authority from the Legislature. In the event that the Legislature does not provide said funds or expenditure authority for any fiscal year, then and in such event, this Agreement is null and void and said Agreement shall expire at the end of the fiscal year in which the last funding or expenditure authority shall be made available for the Lessee. The Lessor agrees that a termination because of lack of funds or expenditure authority will not result in a claim against the University, the South Dakota Board of Regents, the State of South Dakota, or any officer or employee of the State. 18. This Agreement contains the entire agreement between the parties, and is subject to and will be construed under the laws of the State of South Dakota, and may be amended only in writing signed by both parties. Any lawsuit pertaining to or affecting this Agreement shall be venued in Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota. 19. The parties will comply with all federal, state, and local laws, regulations, ordinances, guidelines, permits, and requirements applicable to providing services pursuant to the Agreement and will be solely responsible for obtaining current information on such requirements. 20. The Lessor agrees to hold harmless and indemnify the State of South Dakota, the South Dakota Board of Regents, South Dakota State University, their officers, agents or employees, from and against any and all actions, suits, damages, liability or other proceedings that may arise as a result of its performance of this contract. Nothing herein requires the Lessor to be responsible for any action, suit, damage, liability or other proceeding that may arise as a result of the negligence, misconduct, error or omission of the State of South Dakota, the South Dakota Board of Regents, South Dakota State University, their officers, agents or employees. IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have hereunto set their hands and official seals the day and year first above written. LESSEE: South Dakota State University LESSOR: South Dakota State University Foundation, Inc.: By: Date By: Steve Erpenbach Its: Its: President & CEO
Appendix A (Insert image of leased premises) ATTACHMENT I 8
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