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HomeMy WebLinkAboutCrystal Distibution, Inc-11/5/2012Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 OCCUPANCY AGREEMENT This Occupancy Agreement (the "Agreement") is made and entered into as of ALL` ��� Vi ' 5, 2012, by and between the City of Waterloo, Iowa, an Iowa municipal corporation ("Owner"), and Crystal Distribution, Inc. ("Occupant"). 1. PREMISES AND TERM. Subject to the terms set forth in this Agreement, the parties agree that Occupant shall have the right to occupy the following real estate (the "Property"): Assessor parcel nos. 8913-25-179-005 and -006; commonly known as 105 E. 10th Street, Waterloo, Iowa, with the improvements thereon and all rights, easements, and appurtenances belonging thereto, for a term commencing , 2012 and continuing until and including October 31, 2017, upon the condition that the Occupant performs as provided in this Agreement. 2. RENT. Occupant shall pay $1.00, in advance, as base rent for the term of this Agreement. 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 the same purposes as currently used, namely, as a warehouse or storage facility. Occupant's use and possession of the Property is a personal right. Occupant may not rent the Property to anyone other than a person or company with which Occupant has a written lease agreement as of October 1, 2012 or unless otherwise approved by Owner in writing. Owner has not reviewed zoning or other applicable legal requirements or limitations imposed by any local, state, or federal governmental authority that may affect Occupant's use of the premises, and Owner makes no representation or warranty that the premises is suitable for Occupant's intended use. Occupant shall conduct its own review of applicable law and shall be solely responsible for meeting all legal requirements, including but not limited to building permits, licensure, or governmental approval. 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 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; REMOVAL OF FIXTURES. 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 except for such repairs and alterations as may be expressly herein provided or to which Owner may hereafter give its prior written consent. Occupant shall make no structural alterations or improvements without the Owner's prior written approval of the plans and specifications therefor. No later than the last day of the term of this Agreement, Occupant may, at its sole expense, remove any and all fixtures and equipment from the Property. Any fixtures or equipment not so removed shall remain with the Property and shall become the sole property of Owner, to be used, discarded, sold or demolished as Owner sees fit in the exercise of its sole discretion. The premises shall be kept closed and secure at all times against entry by unauthorized persons. (b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Owner shall have no duty whatsoever to care for or maintain the Property or any part thereof. 8. FACILITY SERVICES. (a) UTILITIES AND SERVICES. Occupant, during the term of this Agreement, 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. (b) AIR CONDITIONING AND HEATING equipment shall be initially furnished by Owner, and Occupant shall maintain, repair, and replace same. 9. END OF TERM. This Agreement shall terminate upon expiration of the original term. Occupant agrees that upon the termination of this Agreement, whether in whole or in part, 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. 10. Reserved. 11. 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. 12. PROPERTY TAXES. Occupant shall timely pay all taxes, assessments, or other public charges levied or assessed by lawful authority against its personal property on the premises during the term of this Agreement. 13. INSURANCE. (a) The parties agree that Occupant may, at its own expense, maintain hazard or other insurance to cover the buildings, fixtures and personal property from loss or damage. Owner shall provide no such insurance, nor insurance of any other type or nature, for the benefit of Occupant. Any insurance carried by Owner in respect of the Property shall be for the sole benefit of Owner and shall not name Occupant as an additional insured. Owner shall have no duty to use insurance proceeds to repair or 2 rebuild any structure or other improvement on the Property. To the extent permitted by their policies, Owner and Occupant waive all rights of recovery against each other. (b) Occupant further agrees that it will at its own expense procure and maintain 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 the activities of Occupant, its employees, agents, and permitted sub - occupants, and shall protect Owner against such claims, damages, costs or expenses on account of injury to any person or persons, or to the property of same, by reason of such casualty, accident or other occurrence on or about the Property during the term of this Agreement. 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 hereunder. 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 employees, agents or sub -occupants. (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. (d) 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. 14. INDEMNITY. Except as to any negligence of Owner or its agents, and to the extent not covered by insurance maintained by Occupant, 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 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. 15. DESTRUCTION. (a) PARTIAL DESTRUCTION. If any building on the Property is damaged or otherwise rendered in a condition that does not allow Occupant to conduct its business on the premises, but the damage is an insured loss that is capable of being repaired, the parties may agree that Occupant may cause such repairs to be done at no cost to Owner, and the occupancy rights of Occupant shall continue thereafter. Owner shall pay no compensation to Occupant for temporary loss of occupancy rights as a consequence of such damage, nor shall the term of this Agreement be tolled or extended. (b) TOTAL DESTRUCTION. In the event of a destruction or damage of any part of the Property so that Occupant is not able to conduct its business on the premises, and which damages cannot be repaired as provided in paragraph 15(a) above, this Agreement may be terminated at the option of either party. Such termination in such event shall be effected by written notice of one party to the other, within thirty (30) 3 days after such destruction. Occupant shall surrender possession within fourteen (14) days after such notice issues and, each party shall be released from all future obligations hereunder. Owner shall pay no compensation to Occupant for loss of occupancy rights as a consequence of such damage. 16. Reserved. 17. 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, and notice is hereby given that no contractor, subcontractor, 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 thereon, and for the further security of the Owner, the Occupant covenants and agrees to give actual notice thereof in advance to any and all contractors and subcontractors who may furnish or agree to furnish any such material, service, or labor. 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. 18. 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. 19. 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: Crystal Distribution, Inc. 1442 Sycamore Street Waterloo, IA 50703 Attn: Tom Poe, President Owner: City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Attn: Noel Anderson, Community Planning & Development Director 20. 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. 21. 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 4 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. 22. 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 Occupancy Agreement by their duly authorized representatives as of the date first set forth above. OWNER OCCUPANT City of Waterloo, Iowa Crystal Distribution, Inc. By: Th By: Ernest G. Clark, Mayor Thomas J. Po -e; President Attest- ;IL,, : _'� t Suzy Scha es, City Clerk 5