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HomeMy WebLinkAboutCedar Valley Warehouse LLC-12/9/2013Mayor BUCK CLARK COUNCIL MEMBERS DAVID JONES Ward 1 CAROLYN COLE Ward 2 HAROLD GETTY Ward 3 QUENTIN HART Ward 4 RON WELPER Ward 5 BOB GREENWOOD At -Large STEVE SCHMITT At -Large CITY OF WATERLO,; IOWA COMMUNITY PLANNING AND DEVELOPMENT 715 Mulberry Street • Waterloo, Iowa 50703-5783 • (319) 291-4366 Fax (319) 291-4262 , NOEL C. ANDERSON, Community Planning & Development Director CITY OF WATERLOO Council Communication City Council Meeting: December 9, 2013 Prepared: December 5, 2013 Dept. Head Signature: Noel Anderson, Community Planning & Development Director # of Attachments: 1 r ' SUBJECT: Adopt a resolution authorizing the Mayor and City Clerk to sign and fully execute the Assignment of Rebates for the prior development agreement for 2843 Geraldine Road. Submitted by: Noel Anderson, Community Planning & Development Director Recommended City Council Action: Resolution approving agreement Summary Statement: As you may recall, the City of Waterloo entered into a Development Agreement with Cedar Valley Warehouse LLC for the construction of a 40,000 warehouse building at 2843 Geraldine Road. As a part of that agreement, the developer was given tax rebates for the added value of the project. The property will soon be sold, and this agreement will allow the new owner to receive the tax rebates. The development agreement states that such assignment is eligible, and this document will work to clarify the City of Waterloo's approval of such assignment. Expenditure Required: No additional funds from previous agreement Source of Funds: NA Policy Issue: Economic Development within the City of Waterloo. Alternative: NA Background Information: The project helped create the very successful South Port Addition, which is continuing to see new construction as we speak with Koelker Excavating finishing up construction, MMC LLC about to begin construction, and Cedar Valley Warehousing working to begin another building as well. CITY WEBSITE: wwwci.waterloo.ia.us WE'RE WORKING FOR YOU! An Equal Opportunity/Affirmative Action Employer ASSIGNMENT OF REBATES % A -e - The undersigned ("Assignor") is party to a development agreement (the 1C.) City of Waterloo, Iowa, concerning the following real property (the "Pr Address: 2483 Geraldine Road, Waterloo Subject to the terms of the Agreement, Assignor is entitled to property tax rebates in respect of the Property in an amount determined as set forth in the Agreement. Assignor has sold the Property to the Transferee indicated below. In consideration of Transferee's purchase of the Property, Assignor does hereby assign to Transferee all of Assignor's right, title and interest in and to any and all rebates payable in respect of the Property pursuant to the Agreement, effective as to any rebate payable for property taxes that become due and owing after the following date: Cedar Valley Warehouse, LLC [Assignor/seller name — printed] By: Brent Dahlstrom Title: Manager Dated: By: / \/?/ ASILW `ames Sulentic T'- ` e: Manager 1/3 Dated: lamp 3 K n2 4Y E ur-4its,LL-C [Transferee/buyer name-irinted] ASSIGNMENT AND ASSUMPTI©N AGREEMENT THIS AGREEMENT is made and entered into this 'day of December, 2013, by and between Cedar Valley Warehouse, LLC ("CV'), and Kinzler Equities, LLC ("Kinzler"). RECITALS A. CV, as of the date hereof, owns the real estate located at 2843 Geraldine Rd., Waterloo, Iowa, and more particularly described on attached Exhibit "A" ("Premises"). B. CV is leasing Premises to Supply Chain Services International, LLC through a Lease, a copy of which are attached as Exhibit "B" ("Lease"). C. CV possesses all right, title and interest in and to the Lease as Landlord, and desires to sell, assign, and transfer Lease to Kinzler, and Kinzler desires to accept said sale, assignment, and transfer upon the terms and conditions hereinafter set forth and agrees to assume ali of tl�e oeiig under the Lease. I ERMS NOW, THEREFORE, in consideration of the promises and of the mutual covenants, contained herein, and for One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which arc hereby acknowledged, it is agreed as follows: 1. Assinment. CV hereby sells, assigns and transfers to Kinzler all of CV's right, title, and interest in and to Lease, including CV's right, title and interest in and to the Security Deposit. The foregoing sale, assignment and transfer is made without any recourse to CV by Kinzler, except that Kinzler shall have recourse against CV for any breach of its agreements set forth herein, or for any damages Kinzler incurs as a result of the inaccuracy of CV's representations contained herein. 2. Defaults. CV represents and warrants to Kinzler that there are no defaults (or events that with the giving of notice, the passage of time, or both, would constitute a default) under Lease, and that CV has not received any notices of default from the tenant under Lease. 3. Acceptance, Assumption and Indemnification. Kinzler hereby accepts the foregoing sale, assignment and transfer, and hereby assumes and promises to fully and completely perform all covenant, stipulations, agreements and obligations of CV under the Lease arising or accruing on and after closing in the same manner as if Kinzler were the original landlord thereunder, and CV shall be responsible for the period prior thereto. CV shall indemnify and hold Kinzler harmless from any and all claims, demands, actions, causes of actions, suits, proceedings, damages, liabilities and costs of every nature whatsoever which relate to Lease or the Leased premises demised thereunder arising prior to closing. Kiniler shall indemnify and hold CV harmless from any and all claims, demands, actions, causes of action, proceedings, damages, liabilities, and costs of every nature whatsoever which relate to Lease or the Leased premises demised thereunder arising on or after closing. Without limiting the foregoing, all rent and other sums payable under the Lease shall be payable to Kinzler as of December 13, 2013, who shall also be entitled to any and all delinquent payments. 4. Representations. CV hereby makes the following representations and warranties to Kinzler: A. The Lease is not amended or modified in any manner. B. The Lease is in full force and effect, and CV has full right and power to assign Lease to Kinzler. C. There is no other assignment (collateral or absolute) of CV's right, title, or interest in Lease, further no lease or sublease of the Premises is currently in effect. CV is the sole and lawful owner and holder of Lease. D. CV's interest in Lease is unencumbered. 5. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors. heirs, and assigns of the parties. The parties shall execute and deliver such further and additional instruments, agreements and other documents as may be necessary to evidence or carry out the provisions of this Agreement. 6. Entire Agreement. This Agreement supersedes all agreements previously made between the parties relating to its subject matter. There are no other understandings or agreements between the parties. 7. Notices. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, postage prepaid, addressed to the parties at their last known addresses. In the alternative, fax notices, to the last known fax number of the parties shall be deemed sufficient. 8. Nonwaiver. No delay of failure by either party exercise any right under this Agreement, and no partial or single exercise of any right under this Agreement shall constitute a waiver of that or any other right, unless expressly provided herein. 9. Governing Law. This Agreement shall be construed in accordance with an governed by the laws of the State of Iowa, without regard to its conflict of law rules. The place for enforcement of this Agreement, the Lease, and of the Guarantees shall be the Iowa District Court for Black Hawk County, and all parties hereby submit to the jurisdiction of the Courts of that County. 10. Attorneys' Fees. The prevailing party in any legal action brought to enforce this Agreement shall be entitled to reasonable attorney fees and costs. 11. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Fax signatures shall be deemed to have the same effect as originals. Cedar Valley Warehouse, LLC By: Brent Dahlstrom Its: Manager Kinzler„Equities, LLC Kevin Its: Manager EXHIBIT A Lots 4 & 5, South Port 2nd Addition, Waterloo, Black Hawk County, Iowa. EXHIBIT B LEASE .BUSINESS PROPERTY THIS LEASE AGREEMENT, is entered into this day of June, 2013, by Cedar Valley Warehouse, LLC ("Landlord") whose address for the purpose of this Lease is 2202 College St, Cedar Falls, IA 50613, and Supply Chain Services International, LLC. ("Tenant") whose address for the purpose of this Lease is 2843 Geraldine Rd., Waterloo, IA 50703. WITNESSETH THAT: 1. PREMISES AND TERM. Landlord, in consideration of the rents, agreements and conditions herein contained, leases to the Tenant and Tenant leases from Landlord, according to the terms of this Lease, the following described real estate, situated in Black Hawk County, Iowa: Approximately 20,000 sq. ft. being the east ' of the building located on the real estate legally described as: Lots 4 & 5, South Port 2"i Addition, Waterloo, Black Hawk County, Iowa (commonly known as 2843 Geraldine Rd., Waterloo, IA 50703) ("Building") and more particularly shown on attached Exhibit "A" ("Premises") with the improvements thereon, and all rights, easements and appurtenances, for a term of one (1) year, commencing at midnight of the day previous to the first day of the lease term, which shall be on July 1, 2013, and ending at midnight on the last day of the lease term, which shall be on June 30, 2014, upon the condition that Tenant pays rent therefore, and otherwise performs as in this Lease provided. Should Premises not be ready for possession on July 1, 2013 due to sprinkler issues or weather related construction delays, rent shall be prorated to the date possession can be delivered. 2. RENT. Tenant agrees to pay to Landlord as rent for said term, as follows: $6,666.67 per month ($4 per sq. ft.), in advance, commencing July 1, 2013, and the same amount, per month, in advance, on the 1st day of each month thereafter, during the term of this Lease. Upon execution of this Lease, Tenant shall also pay a deposit of $6,666.67. All sums shall be paid at the address of Landlord, as above designated, or at such other place in Iowa, or elsewhere, as the Landlord may, from time to time, designate in writing. (a) CAM Charges. In addition to the above mentioned base rent, Tenant shall also pay Tenant's Proportionate Share of common area maintenance ("CAM") charges to Landlord each month for general operating expenses of the Building incurred by Landlord. Such general operating expenses of the Building shall include, but not be limited to, real estate taxes and special assessments, lighting, light poles and electric service, common building utilities. yard care, water, rubbish disposal, snow removal, repair of parking lot, property management fee and service contracts. The initial CAM rate shall be $2,100 per month ($1.26 per sq 11.) and then reviewed annually at the Lease anniversary date. The CAM rate will be based on actual CAM expenses incurred by Landlord and allocated to Tenant based on Tenant's Proportionate Share. "Tenant's Proportionate Share" shall be determined by dividing the square footage of Premises by the Gross Leaseable Area of the Building. The "Gross Leaseable Area" shall consist of the square footage rentable area of all tenant spaces in the Building, whether actually leased or not, as the same is constituted on the date of this Lease and as may be changed from time to time. . "Tenant's Proportionate Share" shall be 50%. Tenant shall have the right to audit, inspect and copy the books and records of the Landlord, and/or to receive copies of any of invoices, with respect to any cost or item which is included in the CAM charges, upon 10 days advance written notice by Tenant to Landlord. (b) Payments. All sums shall be paid at the address of Landlord, as above designated, or at such other place in Iowa, or elsewhere, as the Landlord may, from time to time, designate in writing. Delinquent payments shall draw interest at 12 % per annum from the due date, until paid. 3. POSSESSION. Tenant shall be entitled to possession on the first day of the term of this Lease, and shall yield possession to the Landlord at the end of the lease tern, except as herein otherwise expressly provided. Should Landlord be unable to give possession on said date, Tenant's only damages shall be a rebating of the pro rata rental. 4. USE OF PREMISES, Tenant covenants and agrees during the term of this Lease to use and to occupy the Premises only for a warehouse. Landlord represents the Premises are appropriately zoned for such use. 5. QUIET ENJOYMENT. Landlord covenants that its estate in said Premises is in fee simple and that the Tenant, if not in default, shall peaceably have, hold and enjoy the Premises for the term of this Lease. Landlord shall have the right to mortgage all of its right, title, interest in said Premises at any time without notice, subject to this Lease. 6. CARE AND MAINTENANCE. (a) Landlord's Improvements. Landlord to provide the items more particularly detailed on attached Exhibit B. (b) Landlord's Maintenance. Landlord shall maintain the roof, structural parts, and foundation of Premises, unless repair or maintenance is necessary due to damage/negligence caused by Tenant. (c) Tenant's Maintenance. Tenant shall take the Premises in "AS IS" condition, except as provided in 6(a) above. Tenant shall maintain the Premises in a reasonable safe, serviceable, clean and presentable condition, and shall make all repairs, replacements and improvements to the Premises, including all changes, alterations, or additions ordered by any lawfully constituted government authority directly related to Tenant's use of the Premises. Tenant shall make no structural changes or alterations without the prior written consent of Landlord. Unless otherwise provided, and if the Premises include the ground floor, Tenant agrees to remove all snow and ice and other obstructions from the sidewalk on or abutting the Premises. (c) Workmanlike. Any repair or maintenance shall be done in a good and workmanlike manner free from defects in materials and workmanship, and comply with all applicable building and safety codes. 7. UTILITIES AND SERVICES. Tenant shall pay for alt utilities and services which may be used on the Premises. Landlord shall not be liable for damages for failure to perform as herein provided, or for any stoppage for needed repairs or for improvements or arising from causes beyond the control of Landlord, provided Landlord uses reasonable diligence to resume such services. 8. TERMINATION, SURRENDER OF PREMISES AT END OF TERM. (a) Termination. This Lease shall terminate upon expiration of the original term. (b) Option to Renew. Provided Tenant is not in default, Tenant may renew this lease for one (1) additional term of one (1) year by giving Landlord a written notice of intent to renew at least 90 days prior to the expiration of the term. Said renewal will be on the same terms and condition as the original term. (c) Surrender. Tenant agrees that upon termination of this Lease it will surrender and deliver the Premises in good and clean condition, except the effects of ordinary wear and tear and depreciation arising from lapse of time, or damage without fault or liability of Tenant. (d) Holding Over. Continued possession by Tenant, beyond the expiration of its tenancy, coupled with the receipt of the specified rental by the Landlord (and absent a written agreement by both parties for an extension of this Lease, or for a new lease) shall constitute a month to month extension of the Lease. (e) Removal of Fixtures. Tenant may, at the expiration of its tenancy, if Tenant is not in default, remove any fixtures or equipment which Tenant has installed in the Premises, providing Tenant repairs any and all damages caused by removal. 9. ASSIGNMENT AND SUBLETTING. Any assignment of this Lease or subletting of 2 the Premises or any part thereof, without the Landlord's written permission shall, at the option of the Landlord, make the rental for the balance of the lease term due and payable at once. Tenant shall not sublet or assign the Demised Premises without the Landlord's prior written consent, which consent shall not be unreasonably withheld. 10. REAL ESTATE TAXES. Tenant shall pay all installments of real estate taxes or special assessment which would become delinquent if not paid during the term of this Lease, as part of the CAM. Each party reserves its right of protest of any assessment of taxes. 11. INSURANCE. (a) Property Insurance. Landlord agrees to insure the real property for the full insurable value. Such insurance shall cover losses included in the Insurance Services Official Broad Form Causes of Loss. Tenant shall insure its own personal property located on Premises. To the extent permitted by their policies the Landlord and Tenant waive all rights of recovery against each other. (b) Liability Insurance. Tenant shall obtain commercial general liability insurance in the amounts of $1,000,000 each occurrence and $1,000,000 annual aggregateperlocation. Such policy shall include liability arising from Premises operations, independent contractors, personal injury, products and completed operations and liability assumed under an insured contract. This policy shall be endorsed to include the Landlord as an additional insured. (c) Certificates of' Insurance. Prior to the time the Lease takes effect the Tenant will provide the Landlord with a certificate of insurance with these property and liability insurance requirements, such certificate shall include 30 days advance notice of cancellation to the Landlord. A renewal certificate shall be provided prior to expiration of the current policies. (d) Acts By Tenant. Tenant will not do or omit doing of any act which would invalidate any insurance, or increase the insurance rates in force on the Premises. 12. LIABILITY FOR DAMAGE. Each party shall be liable to the other for all damage to the property of the other negligently, recklessly or intentionally caused by that party (or their agents, employees or invitees), except to the extent the loss is insured and subrogation is waived under the owner's policy. 13. INDEMNITY. Except for the negligence of Landlord, Tenant will protect, defend and indemnify Landlord from and against all loss, costs, damage and expenses occasioned by, or arising out of, any accident or other occurrence, causing or inflicting injury or damage to any person or property, happening or done in, upon or about the Premises . or due directly or indirectly to the tenancy, use or occupancy thereof, or any part thereof by Tenant or any person claiming through or under Tenant. 14. FIRE AND CASUALTY. (a) Partial Destruction of Premises. In the event of a partial destruction or damage of the Premises, which is a business interference which prevents the conducting of a normal business operation and which damage is repairable within 120 days after its occurrences, this Lease shall not terminate but the rent for the Premises shall abate during the time of such business interference. In the event of a partial destruction, Landlord shall repair such damages 120 days after its occurrence unless prevented from doing so by acts of God, government regulations, or other causes beyond Landlord's reasonable control. (b) Zoning. Should the zoning ordinance of the municipality in which this property is located make it impossible for Landlord to repair or rebuild so that Tenant is not able to conduct its business on these Premises, then such partial destruction shall be treated as a total destruction as provided in the next paragraph. (e) Total Destruction of Business Use. In the event of a destruction or damage of the Premises including the parking area (if parking area is a part of this Lease) so that Tenant is not able to conduct its business on the Premises or the then current legal use for which the Premises are being used and which damages cannot be repaired within 120 days, this Lease may be terminated at the option of either the Landlord or Tenant. Such termination in such event shall be effected by written notice of one party to the other, within 30 days after such destruction. Tenant shall surrender possession within 30 days after such notice issues and each party shall be released from all future obligations, and Tenant shall pay rent pro rata only to the date of such destruction. In the event of such termination of this Lease, Landlord at its option, may rebuild or not, at its discretion. 15. CONDEMNATION. (a) Disposition of Awards. Should the whole or any part of the Premises be condemned or taken for any public or quasi -public purpose, each party shall be entitled to retain, as its own property, any award payable to it, or in the event that a single entire award is made on account of the condemnation, each party will then be entitled to take such proportion of said award as may be fair and reasonable. 111 .11. 1 ••.1 . 11 or taken, the Landlord shall not be Liable to the Tenant except and as its rights are preserved in paragraph 15 (a) above. 16. LANDLORD'S RIGHT OF ENTRY. Landlord and its representatives may enter the Premises, in the presence of a representative of Tenant, at any reasonable time and upon 24 hours notice to Tenant (except no notice nor the presence of a representative of Tenant is necessary in an emergency) in order to inspect Premises, perform any work made necessary by reason of Tenant's default under this Lease, exhibit Premises for sale, lease or mortgage financing and to post notices of non -responsibility under any mechanic's lien law; provided however, exhibit the Premises for lease shall be limited to the final ninety (90) days of the term of this Lease. Landlord hereby covenants to take reasonable precautions to minimize and to mitigate the interference of Landlord's activities with the conduct of Tenant's business. 17. DEFAULT, NOTICE OF DEFAULT AND REMEDIES. (a) Events of Default. Each of the following shall constitute an event of default by Tenant: i. Failure to pay rent when due. ii. Failure to observe or perform any duties, obligations, agreements or conditions imposed on Tenant pursuant to terms of the Lease. Abandonment of the Premises, "Abandonment" means the Tenant has failed to engage in its usual and customary business activities on the Premises for more than fifteen (15) cousecutive business days. iv. Institution of voluntary bankruptcy proceedings in which the Court orders relief against the Tenant as a debtor, assignment for the benefit of creditors of the interest of Tenant under this Lease; appointment of a receiver for the property or affairs of Tenant, where the receivership is not vacated within ten (10) days after the appointment of the receiver. (b) Notice of Default. Landlord shall give Tenant a written notice specifying the default and giving the Tenant ten (10) days in which to correct the default If there is a default (other than for nonpayment of a monetary obligation of Tenant, including rent') that cannot be remedied in ten (10) days by diligent efforts of the Tenant, Tenant shall propose an additional period of time in which to remedy the default. Consent to additional time shall not be unreasonably withheld by the Landlord. Landlord shall not be required to give Tenant any more than one (1) notice for the same default within any 365 day period. (c) Remedies. In the event Tenant has not remedied a default in a timely manner following a Notice of Default, Landlord may proceed with all available remedies at law or in equity, including but not limited to the following: i. Termination. Landlord may declare this Lease to be terminated and shall give Tenant a written notice of such termination. In the event of termination of this Lease, Landlord shall be entitled to prove claim for and obtain judgment against Tenant for the balance of the rent agreed to be paid for the term herein provided, plus all expenses of Landlord in regaining possession of the Premises and the reletting thereof, including attorney's fees and court costs, crediting against such claim, however, any amount obtained by reason of such reletting. 4 it. Forfeiture. If a default is not remedied in a timely manner, Landlord may then declare this Lease to be forfeited and shall give the Tenant a written notice of such forfeiture, and may, at the time, give Tenant the notice to quit provided for in Chapter 648 of the Code of Iowa_ 18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER. If default shall be made by either party in the performance of; or compliance with, any of the terms or conditions of this Lease, and such default shall have continued for thirty (30) days after written notice thereof from one party to the other, the person aggrieved, in addition to all other remedies now or hereafter provided by law, may, but need not, perform such term or condition, or make good such default and any amount advanced shall be repaid forthwith on demand, together with interest at the rate of 10% per annum, from date of advance. 19. SIGNS. (a) Tenant. Tenant shall have the right and privilege of attaching, paint ng or exhibiting signs on the Premises, provided only (1) that any sign shall comply with the ordinances of municipality in which the property is located and the laws of the State of Iowa; (2) such sign shall not change the structure of the building; (3) suchsign, if and .when removed, shall not damage the building, and (4) such sign shall be subject to the written approval of the Landlord, which approval shall not be unreasonably withheld. (b) Landlord. Landlord during the last ninety (90) days of this Lease, or extension, shall have the right to maintain in the windows or on the building or on the Premises either or both a "For Rent" or "For Sale" sign and Tenant will permit, at such time, prospective tenants or buyers to enter and examine the Premises. 20. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by, through, or under the Tenant, shall have the right to file or place any mechanic's liens or other lien of any kind or character whatsoever, upon said Premises or upon any building or improvement thereon, or upon the leasehold interest of the Tenant, and notice is hereby given that no contractor, sub -contractor, or anyone else who may furnish any material, service or labor for any building, improvements, alteration, repairs or any part thereof shall at any time be or become entitled to any lien on the Premises, and for the further security of the Landlord, the Tenant covenants and agrees to give actual notice thereof in advance, to any and all contractors and sub -contractors who may furnish or agree to furnish any such material, service or labor. 21. LANDLORD'S LIEN AND SECURITY INTEREST. Landlord shall have, in addition to any lien given by law, a security interest as provided by the Uniform Commercial Code of Iowa, upon all personal property and all substitutions thereof, kept and used on said Premises by Tenant. Landlord may proceed at law or in equity with any remedy provided by law or by this Lease for the recovery of rent, or for termination of this Lease because of Tenant's default in its performance. 22. ENVIRONMENTAL. Tenant expressly represents and agrees: (a) During the lease term, Tenant's use of the property will not include the use of any hazardous substance without Tenant first obtaining the written consent of Landlord. Tenant understands and agrees that Landlord's consent is at Landlord's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Landlord deems appropriate. Tenant is preapproved to use Simple Green, Evaporust, and WD40 (or similar product) on the Premises. (b) During the lease term, Tenant shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the property by Tenant, and Tenant shall give immediate notice to Landlord of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. (c) Tenant, at its sole cost and expense, agrees to remediate, correct or remove from the Premises any contamination of the property caused by any hazardous substances which have been used or permitted by Tenant on the Premises during any terra of this Lease. Remediation, 5 correction or removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. Tenant reserves all rights allowed by law to seek indemnity or contribution from any person, other than Landlord, who is or may be liable for any such cost and expense. (d) Tenant agrees to indemnify and hold Landlord harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuits, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by Tenant on or after the date of this Lease and during any term of this Lease, including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Lease. 23. INTENTIONALLY OMITTED. 24. ESTOPPEL CERTIFICATE. Tenant agrees from time to time upon not less than ten (10) days prior written request by Landlord to deliver to Landlord a statement in writing certifying (i) that this Lease is unmodified -and in full force and effect (or if there have been modifications that the Lease as modified is in full force and effect and stating the modifications); (ii) the dates to which the rent and other charges have been paid; (iii) that Landlord is not in default in any provision of this Lease, or if in default, the nature thereof specified in detail; (iv) the amount of monthly rent currently payable by Tenant, and (v) the amount of any prepaid rent. 25. SUBORDINATION, NON -DISTURBANCE, AND ATTORNMENT. This Lease shall be subject and subordinate to any mortgage, now or hereafter placed upon Premises, or any portion thereof by Landlord, its successors or assigns, and to modifications, consolidations, replacements, renewals and extensions thereof. Tenant agrees at any time hereafter, upon demand, to execute and deliver any instruments, releases, or other documents that may be reasonably required for the purpose of subjecting and subordinating this Lease, as provided, to the lien of any such mortgage. Tenant shall, upon request, attorn to any party which succeeds to Landlord's interest in the Premises. It is agreed, nevertheless, that as long as Tenant be not in default in the payment of rent or other charges to be by it paid under this Lease, and the performance of all covenants, agreements, and conditions by it to be performed under this Lease, Tenant's right to possession and quiet enjoyment under this Lease shall not be disturbed. 26. ENFORCEMENT. The validity, interpretation, performance, and enforcement of this Lease shall be governed by the laws of the State of Iowa. Each of the parties consents to the jurisdiction of the Iowa District Court for Black Hawk County in all matters relating to this Lease. The prevailing party in any action to enforce this Lease shall be entitled to reasonable attorney fees and costs. Landlord shall be entitled to attorney's fees, costs, and expenses incurred in the preparation and service of notices of default and consultations in connection therewith,. whether or not a legal action is subsequently commenced in connection with such default or resulting breach. 27. RIGHTS CUMULATIVE. The various rights, powers, options, elections and remedies of either party, provided in this Lease, 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 Iong as any default remains in any way unremedied, unsatisfied or undischarged. 28. NOTICES AND DEMANDS. Notices as provided for in this Lease shall be given to the respective parties hereto at the respective addresses designated on page one of this Lease unless either party notifies the other, in writing, of a different address. Without prejudice to any other method of notifying a party in writing or making a demand or other communication, such message shall be considered given under the terms of this Lease when sent, addressed as above designated, postage prepaid, by certified mail deposited in a United States mail box. 29. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. 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EXHIBIT B a. Install equipment to provide radiant heat to maintain a temperature of 50 degrees or higher inside Premises in winter conditions. b. Provide 2 separate unisex handicap accessible bathrooms per City Code. The dimensions of the same to be approximately 6 ft x 9 ft. and they are to be located as shown on attached Exhibit "A". c. Provide 2 powered dock doors, the location of the same more particularly shown on attached Exhibit "A". d. Provide general exterior lighting, including all electric plugs, pursuant to a drawing of locations provided by Tenant. All interior Lighting equipment is to be provided by Tenant and said lighting equipment shall be Tenant's possession when Tenant vacates. e. Provide two additional entry doors to be located as more particularly shown on attached Exhibit "A". f. Provide a separate electric service meter for Premises, which includes 480 amp power. g. Provide ESFR system (fast response) sprinkler system, which does nut include any racking. If sprinkler systems is required for Tenant's racking system by City Code or the Waterloo Fire Marshall, Tenant shall be responsible for installation of the same, including all costs associated therewith. 9 ASSIGNMENT AND ASSUMPTION AGREEMENT 5111 A0,3 c POC • J -13 an41 THIS AGREEMENT is made and entered into this day of December, 2013, by and between Cedar Valley Warehouse, LLC ("CV"), and Kinzler Equities, LLC ("Kinzler"). RECITALS A. CV, as of the date hereof, owns the real estate located at 2843 Geraldine Rd., Waterloo, Iowa, and more particularly described on attached Exhibit "A" ("Premises"). B. CV entered into a Development Agreement for Premises with the City of Waterloo, Iowa ("City") which was filed February 14, 2013, as Document No. 2013-17082, in the office of the Black Hawk County Recorder, and amended by an Amendment to Development Agreement and Amendment to Minimum Assessment Agreement which was filed , 2013, as Document No. in the office of the Black Hawk County Recorder (collectively "Development t" C. CV possesses all right, title and interest in and to the Development Agreement, and desires to sell, assign, and transfer Development Agreement to Kinzler, and Kinzler desires to accept said sale, assignment, and transfer upon the terms and conditions hereinafter set forth and agrees to assume all of the obligations of CV under the Development Agreement. TERMS NOW, THEREFORE, in consideration of the promises and of the mutual covenants, contained herein. and for One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which arc hereby acknowledged, it is agreed as follows: 1. Assignment. CV hereby sells, assigns and transfers to Kinzler all of CV's right, title, and interest in and to Development Agreement. The foregoing sale, assignment and transfer is made without any recourse to CV by Kinzler, except that Kinzler shall have recourse against CV for any breach of its agreements set forth herein, or for any damages Kinzler incurs as a result of the inaccuracy of CV's representations contained herein. 2. Defaults. CV represents and warrants to Kinzler that there are no defaults (or events that with the giving of notice, the passage of time, or both, would constitute a default) under Development Agreement. and that CV has not received any notices of default from the City under Development Agreement. 3. Acceptance, Assumption and Indemnification. Kinzler hereby accepts the foregoing sale, assignment and transfer, and hereby assumes and promises to fully and completely perform all covenant, stipulations, agreements and obligations of CV under the Development Agreement arising or accruing on and after closing in the same manner as if Kinzler were the original Company thereunder, and CV shall be responsible for the period prior thereto. CV shall indemnify and hold Kinzler harmless from any and all claims, demands, actions, causes of actions, suits, proceedings, damages, liabilities and costs of every nature whatsoever which relate to Development Ab eement arising prior to closing. Kinzler shall indemnify and hold CV harmless from any and all claims, demands, actions, causes of action, proceedings, damages, liabilities, and costs of every nature whatsoever which relate to Development Agreement arising on or after closing. 4. Representations. CV hereby makes the following representations and warranties to Kinzler: A. The Development Agreement is not amended or modified in any manner. B. The Development Agreement is in full force and effect, and CV has full right and power to assign Development Agreemeo to Kinzler. C. There is no other assignment (collateral or absolute) of CV's right, title, or interest in Development Agreement. CV is the sole and lawful owner and holder of Development Agreement. D. CV's interest in Development Agreement are unencumbered. 5. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, and assigns of the parties. The parties shall execute and deliver such further and additional instruments, agreements and other documents as may be necessary to evidence or carry out the provisions of this Agreement. 6. Entire Agreement. This Agreement supersedes all agreements previously made between the parties relating to its subject matter. Therc arc no other understandings or agreements between the parties. 7. Notices. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, postage prepaid, addressed to the parties at their last known addresses. In the alternative, fax notices, to the last known fax number of the parties shall be deemed sufficient. 8. Nonwaiver. No delay of failure by either party exercise any right under this Agreement, and no partial or single exercise of any right under this Agreement shall constitute a waiver of that or any other right, unless expressly provided herein. 9. Governing Law. This Agreement shall be construed in accordance with an governed by the laws of the State of Iowa, without regard to its conflict of law rules. The place for enforcement of this Agreement, the Development Agreement, and of the Guarantees shall be the Iowa District Court for Black Hawk County, and all parties hereby submit to the jurisdiction of the Courts of that County. 10. Attorneys' Fees. The prevailing party in any legal action brought to enforce this Agreement shall be entitled to reasonable attorney fees and costs. 11. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Fax signatures shall be deemed to have the same effect as originals. Cedar Valley Warehouse, LLC By: Brent Dahlstrom Its: Manaier r1 y: James Sulentic Its: Manager State of Iowa ) County of Black Hawk )ss Kinzler Equities, LLC This record was acknowledged before me on this 5 day of December, 2013, by Brent Dahlstrom and LLC. James Sulentic , as Managua p1"C h� P State of Iowa ) County of Black Hawk )ss BARB 70 COM COMMISSSION FXPIIMISSION NO. REOS January 15.2015 �mJ This record was acknowledged before me on this Jl day of December, 2013, by , as of Kinzler Equities, LLC. CHRISTOPHER FISCHELS COMMISSION NO. 735549 MY COMMISSION EXPIRES "ZM` Exhibit "A" Lots 4 and 5 "South Port 2"d Addition", City of Waterloo, Black Hawk County, Iowa, except Parcel "F" of Plat of Survey Doc. #2014-08122. orT ASSIGNMENT OF REBATES The undersigned ("Assignor") is party to a development agreement (the "Agreement") with the ' City of Waterloo, Iowa, concerning the following real property (the "Property"): Address: 2483 Geraldine Road, Waterloo Subject to the terms of the Agreement, Assignor is entitled to property tax rebates in respect of the Property in an amount determined as set forth in the Agreement. Assignor has sold the Property to the Transferee indicated below. In consideration of Transferee's purchase of the Property, Assignor does hereby assign to Transferee all of a able in resect of the Pro.ert a • • -,• 1 _• . • Il . •I a Ile .. e pursuant to the Agreement, effective as to any rebate payable for property taxes that become due and owing after the following date: Cedar Valley Warehouse, LLC [Assignor/seller name — printed] By: Brent Dahlstrom Title: Manager Dated: By: ofv13 ames Sulentic T e: Manager Dated: Ki n7i Y & ;4ies a.LC [Transferee/buyer name — rinted] By: ESTOPPEL CERTIFICATE AND PARTIAL WAIVER OF RIGHT OF FIRST REFUSAL The undersigned, Supply Chain Services International, LLC ("Tenant") hereby certifies as follows: 1. The undersigned is the Tenant under that certain lease dated June 7, 2013 (the "Lease") with. Cedar Valley Warehouse, LLC ("Landlord") , pursuant to which Tenant leases a portion of 2843 Geraldine Road, Waterloo, Iowa (the "Premises"). 2. The Lease has not been modified, changed, altered, supplemented or amended in any respect, nor have any provisions thereof been waived. The Lease is referred to as the "Lease". 3. A true, correct and complete copy of the Lease, any amendments thereto, if any, is attached hereto and incorporated herein by reference as Exhibit "A". 4. The Lease is valid and in full force and effect on the date hereof. The Lease represents the entire agreement between Landlord and Tenant with respect to the Premises. 5. Tenant is not entitled to, and has made no agreement with Landlord or its agents or employees concerning, free rent, partial rent, rebate of rent payments, credit or offset or reduction in rent, or any other type of rental concession including, without limitation, lease support payments, lease buy-outs, or assumption of any leasing or occupancy agreements of Tenant. 6. Tenant has not sublet all or a portion of the Premises to any sublessee and has not assigned, transferred or encumbered any of its rights or interests under the Lease. 7. The Lease term ends June 30, 2014. Per the terms of the Lease, Tenant may renew the Lease for one (1) additional term of one (1) year by giving the Landlord written notice of its intent to renew at least 90 days prior to June 30, 2014. Tenant specifically waives any right of first refusal as set forth in Section 32 of the Lease as it relates to any affiliated entities of Landlord or successor Landlord. Except for the option to renew the Lease, as set forth in Section 8(b) of the Lease, Tenant has no other outstanding options, rights to renew or extend the term of the Lease, expansion options, other options, rights of first refusal or rights of first offer to lease with respect to all or any part of the Premises. 8. The rent payable under the Lease for the present term has been paid through and including the date of October 31, 2013. No such rent (excluding security deposits) has been paid in advance of its due date. 9. Tenant's security deposit, if any, is $6,666.67. 10. No event has occurred and no condition exists that constitutes, or that with the giving of notice or the passage of time or both, would constitute a default by Tenant or Landlord under the Lease. Tenant has no existing defenses or offsets against the enforcement of the Lease by Landlord. 11. (a) All required contributions by Landlord to Tenant on account of Tenant's tenant improvements have been received by Tenant and all of Tenant's tenant improvements have been completed in accordance with the terms of the Lease. (b) Landlord has satisfied all of its obligations to Tenant arising out of or incurred in connection with the construction of the tenant improvements on the Premises, the delivery of the Premises to Tenant and the construction of improvements. 12. Tenant has no outstanding options, rights of first refusal or rights of first offer to purchase the Premises or any part thereof and/or the land on which the Premises are situated, except as specifically set forth herein and/or the Lease. 13. No voluntary actions or, to Tenant's best knowledge, involuntary actions are pending against Tenant under the bankruptcy laws of the United States or any state thereof. 14. Tenant has obtained all permits and licenses as Tenant has determined necessary to authorize the conduct of Tenant' s business in the Premises. 15. The address for notices to be sent to Tenant is as set forth in the Lease. 16. Tenant is the owner and holder of all right, title and interest in the leasehold estate created by the Lease. 17. Tenant acknowledges that it is making this certification for the benefit of Landlord, any assignee to Landlord, together with each of their respective successors, assigns and lenders, knowing that each of such persons and entities will rely upon the contents hereof. 18. The undersigned is duly authorized to execute this Certificate on behalf of Tenant. Dated: '' (� __ , 2013. TENANT: Supply Chain Services International, LLC By: v -c Name: Pt Title: STATE OF I//11�(?1S ) COUNTY OF V.e y, "Ct, ss -k-v, This record was acknowledged before me this k 2 day of eD C C— , 2013, by J 7lI.ifG�-= MovzootA i S , as ,thi�are, -P c..., o _ • . in Services International, LLC. JANICE MOUZOURAKIS OFFICIAL SEAL Notary Public, State of Illinois My Commission Expires November 14, 2018 y Commission Expires: