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HomeMy WebLinkAboutAmerican Pattern Storage, LLC-11/3/2014EARLY OCCUPANCY AGREEMENT This Early Occupancy Agreement (the "Agreement") is made and entered into as ofNovember 3 , 2014, by and between the City of Waterloo, Iowa, an Iowa municipal corporation ("Owner"), and American Pattern Storage, L.L.C. ("Occupant"). WHEREAS, Occupant intends to enter into a lease (the "Lease") with Owner for premises located at 106 E. 11th Street, Waterloo, Iowa (the "Property"); WHEREAS, Occupant desires possession of the Property before final approval of the Lease by the city council, and Owner is willing to allow early occupancy on the terms set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: 1. PREMISES AND TERM. Subject to the terms set forth in this Agreement, the parties agree that Occupant shall have the right to occupy 7,000 square feet of the Property, with the improvements thereon and all rights, easements, and appurtenances belonging thereto, for a term commencing on the date hereof and continuing until the date set forth in Section 9 hereof, upon the condition that the Occupant performs as provided in this Agreement. 2. RENT. Occupant agrees to pay to Owner as rental for said term, as follows: $600.00 per month, in advance, the first such rent payment becoming on execution of this Lease, and the same amount, per month, in advance, on the 1st day of each month after the first month of the Lease term, during the term of this Lease. With each monthly payment of rent, Tenant shall remit the sum of $211.17 to cover the payment in lieu of taxes. 3. POSSESSION. Occupant shall be entitled to possession on the first day of the term of this Agreement, and shall yield possession to the Owner at the time and date of the close of the Agreement term, except as herein otherwise expressly provided. 4. USE OF PREMISES. Occupant covenants and agrees during the term of this Agreement to use and to occupy the Property, including but not limited to all buildings located thereon, for operation of a pattern and mold production business. Occupant's use and possession of the Property is a personal right. Occupant may not rent the Property to anyone, or allow the Property to be occupied by anyone other than Occupant, unless Owner gives its advance approval in writing. 5. ENVIRONMENTAL MATTERS. Occupant shall not store, spill, discharge, or otherwise release any hazardous materials, substances or wastes in or upon the Property, and in the event that it does Occupant shall promptly report such event to Owner, shall take primary responsibility for cleanup of same, and shall offer reasonable cooperation with any necessary activities to remediate or mitigate same. No later than the end date of this Agreement, Occupant shall, if Occupant is moving from the Property, properly remove, transport, store and/or dispose of any hazardous materials or substances upon the Property of which Occupant has knowledge, all of such actions to be taken in compliance with applicable federal, state and local law. 6. QUIET ENJOYMENT. Occupant shall have and enjoy the possession of the Property for the term of this Agreement free from molestation, eviction or disturbance by the Owner or any other persons or legal entity whatsoever. 7. CARE AND MAINTENANCE OF PREMISES. (a) OCCUPANT'S DUTY OF CARE AND MAINTENANCE. Occupant shall be solely responsible for repair, maintenance and upkeep of the Property and all improvements thereon during the term of its occupancy. By way of illustration, and not limitation, Occupant shall be responsible for the proper care of all grounds and plantings, snow and ice removal, upkeep of buildings and fences, repair and maintenance of mechanical systems, and removal of trash and debris. Occupant takes the Property in its present condition. Occupant shall make no alterations or improvements of any type or nature whatsoever without the Owner's prior written approval. The premises shall be kept closed and secure at all times against entry by unauthorized persons. (b) OWNER'S DUTY OF CARE AND MAINTENANCE. Owner shall have no duty whatsoever to care for or maintain the Property or any part thereof. 8. UTILITIES AND SERVICES. Occupant shall pay before delinquency all charges for use of telephone, water, sewer, gas, electricity, power, garbage or trash disposal, and all other utilities or services of whatever kind and nature which may be used in or upon the Property. 9. END OF TERM. This Agreement shall terminate upon the first to occur of the following dates: (a) upon commencement of the Lease term following approval of the Lease by the Waterloo City Council, or (b) fourteen (14) days after the failure of the Waterloo City Council to approve the Lease at a council meeting where approval of the Lease was an item on the meeting agenda. If this Agreement is terminated under clause (b), then Occupant agrees that upon such termination it will surrender, yield up and deliver the Property in good and clean condition, except the effects of ordinary wear and tear and depreciation arising from lapse of time, or damage not covered by Occupant's insurance, and Occupant will have no claim against Owner for the value of any improvements made or work done to the Property. 10. ASSIGNMENT AND SUBLETTING. Occupant may not assign this Agreement or sublet the premises or any part thereof without the prior written consent of Owner. The rights of occupancy hereunder are personal to Occupant. 11. INSURANCE. (a) Each party will each keep its respective property interests in the Property and its liability in regard thereto, and the personal property on the Property, reasonably insured against hazards and casualties: that is, fire and those items usually covered by extended coverage; and Occupant will procure and deliver to Owner a certification from the respective insurance companies to that effect. Such insurance shall be made payable to the parties hereto as their interests may appear, except that Occupant's share of such insurance proceeds are hereby assigned and made payable to the Owner to secure rent or other obligations then due and owing by Occupant to Owner. To the extent permitted by their policies, Owner and Occupant waive all rights of recovery against each other. (b) Occupant further covenants and agrees that it will at its own expense procure and maintain commercial general liability insurance in the amount of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. Such insurance shall cover liability arising from premises operations, independent contractors, personal injury, products, and completed operations and liability assumed under an insured contract, including but not limited to the activities of Occupant, its employees and agents. Certificates or copies of said policies, naming the Owner as an additional insured, and providing for thirty (30) days' advance notice to the Owner before cancellation, shall be delivered to the Owner within no later than the date that Occupant begins to occupy the Property. A renewal certificate shall be provided to Owner prior to expiration of any policy. Owner shall provide no such insurance for the property or activities of Occupant, its guests, sub -occupants or agents. (c) Occupant will not do or omit the doing of any act which would vitiate any insurance, or increase the insurance rates in force upon the real estate improvements on the premises or upon any personal property of the Occupant upon which the Owner by law or by the terms of this Agreement, has or shall have a lien. Occupant further agrees to be liable for and to promptly pay, as if current rental, any increase in insurance rates on the Property and on the buildings, due to increased risks or hazards resulting from Occupant's use of the premises otherwise than as herein contemplated and agreed. 12. INDEMNITY. Except as to any negligence of Owner or its agents, Occupant will protect, defend, indemnify, and save harmless the Owner from and against any and all losses, costs, damages, and expenses, including but not limited to attorneys' fees and expenses, occasioned by, or arising out of, any act or omission causing or 2 inflicting injury and/or damage to any person or property, happening or done in, upon, or about the Property, and due directly or indirectly to the use or occupancy thereof, or any part thereof, by Occupant or any person claiming through or under the Occupant. Prior to the term hereof, Occupant has had the opportunity to test the premises for toxic or hazardous substances, mold, and other environmental matters, and Occupant agrees that its covenants set forth in this paragraph shall include but not be limited to any claims, demands, losses, or causes of action arising from or relating to such matters by Occupant or any person claiming through or under Occupant. The provisions of this paragraph shall survive the expiration, abandonment, or termination of this Agreement. 13. MECHANIC'S LIENS. Neither the Occupant nor anyone claiming by, through, or under the Occupant, shall have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever upon said premises or upon any building or improvement thereon, or upon the occupancy interest of the Occupant therein. Occupant shall indemnify and defend Owner and hold Owner harmless from and against any and all cost or expense incurred by Occupant in respect of the Property, whether or not a mechanic's lien or other lien is filed. 14. RIGHTS CUMULATIVE. The various rights, powers, options, elections, and remedies of either party as provided in this Agreement shall be construed as cumulative and no one of them as exclusive of the others or exclusive of any rights, remedies, or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unremedied, unsatisfied, or undischarged. 15. NOTICES AND DEMANDS. Any notice under this Agreement shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified U.S. mail, postage prepaid, addressed to the parties at the addresses given below. Occupant: American Pattern Storage, L.L.C. 606 Fairview Avenue Waterloo, IA 50703 Attn: Owner: City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Attn: Noel Anderson, Community Planning & Development Director 16. BINDING EFFECT. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective heirs, personal representatives, successors, and assigns of the parties hereto; except that if any part of this Agreement is held in joint tenancy, the successor in interest shall be the surviving joint tenant. 17. CHANGES TO BE IN WRITING. None of the covenants, provisions, terms, or conditions of this Agreement to be kept or performed by Owner or Occupant shall be in any manner modified, waived, or abandoned, except by a written instrument duly signed by the parties and delivered to the Owner and Occupant. This Agreement contains the entire agreement of the parties and supersedes any and all discussions, negotiations, understandings, or agreements pertaining to the subject matter hereof. 18. CONSTRUCTION. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine, feminine, or neuter, according to the context. IN WITNESS WHEREOF, the parties hereto have executed this Early Occupancy Agreement by their duly authorized representatives as of the date first set forth above. [signatures on next page] 3 OWNER City of Waterloo, Iowa By: Ernest G. Clark, Mayor Attest:r Suzy Scharesij City Clerk 4 OCCUPANT American Pattern Storage, L.L.C.