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HomeMy WebLinkAboutRiley, Stephen J.-Business Property Lease-01.16.2007 -0 7 lio , , boa 7- 94 BUSINESS PROPERTY LEASE This Business Property Lease(the"Lease") is made and entered into as of January !& ,2007, by and between City of Waterloo, Iowa, an Iowa municipal corporation ("Landlord"), whose address for the purpose of this Lease is 715 Mulberry Street, Waterloo, Iowa, 50703 and Stephen J. Riley(the"Tenant"),whose address for the purpose of this Lease is 810 Lisa Drive, Waterloo, Iowa, 50701. 1. PREMISES AND TERM. The Landlord, in consideration of the rents herein reserved and of the agreements and conditions herein contained, on the part of the Tenant to be kept and performed, leases unto the Tenant and Tenant hereby rents and leases from Landlord, according to the terms and provisions herein,the following described real estate, situated in Black Hawk County, Iowa, to wit: The Northeasterly 90 feet of Lot No. 1 in Block No. 15 in the Original Plat, on the West Side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa, and also a strip of land adjoining described as follows: Commencing at the Easterly corner of said Lot No. 1; thence Southwesterly along the Southeasterly line of said lot, 90 feet;thence at right angles Southeasterly 10 feet;thence at right angles Northeasterly and parallel with the Southeasterly line of said Lot, 90 feet; thence at right angles Northwesterly 10 feet to the point of beginning. Commonly known as 300 W. Park Avenue, Waterloo, Iowa, with the improvements thereon and all rights, easements, and appurtenances thereto belonging, for a term commencing at midnight of the day previous to the first day of the Lease term, which shall be January 20, 2007, and ending at midnight on the last day of the Lease term, which shall be September 3, 2007, upon the condition that the Tenant pays rent therefor, and otherwise performs as provided in this Lease. 2. RENTAL. Tenant agrees to pay to Landlord as rental for said term, as follows: $ 0.00 . 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 time and date of the close of this Lease term, 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 leased premises only for activities and purposes consistent with and incidental to activities conducted on the premises by Tenant immediately prior to the start date of this Lease. Landlord has not reviewed zoning or other applicable legal requirements or limitations imposed by any local, state, or federal governmental authority that may affect Tenant's use of the premises, and Landlord makes no representation or warranty that the premises is suitable for Tenant's intended use. Tenant 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. QUIET ENJOYMENT. Landlord covenants that its estate in said premises is fee simple and that the Tenant on paying the rent herein reserved and performing all the agreements by the Tenant to be performed as provided in this Lease, shall and may peaceably have, hold and enjoy the demised premises for the term of this Lease free from molestation, eviction or disturbance by the Landlord or any other persons or legal entity whatsoever. (But see paragraph 14, below.) Landlord shall have the right to mortgage all of its right, title, and interest in said premises at any time without notice, subject to this Lease. 6. CARE AND MAINTENANCE OF PREMISES. Each party shall perform its responsibilities of repair and maintenance to the end that the premises will be kept in a safe and serviceable condition. Neither party will permit nor allow the premises to be damaged or depreciated in value by any act, omission, or negligence of itself, its agents or employees. (a) Tenant takes said premises in their present condition except for such repairs and alterations as may be expressly herein provided. (b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord has purchased the premises from Tenant for economic or community development purposes, intends to demolish the premises after the Lease term, and intends that Tenant shall not occupy the premises beyond the lease term or any extension thereof pursuant to Section 26(c). Accordingly, Landlord shall have no duty whatsoever to care for or maintain the premises or any part thereof. (c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall, after taking possession of said premises and until the termination of this Lease and the actual removal from the premises, at its own expense, care for, maintain, and repair the exterior and interior parts of said premises in a reasonably safe and serviceable condition consistent with its own needs and pursuant to applicable law, ordinance or regulation.Tenant will furnish its own interior and exterior decorating. Tenant at its own expense may install floor covering and will maintain such floor covering in good condition. Tenant will be responsible for the plate glass in the windows of the leased premises and for maintaining the sidewalks and parking areas on and abutting the leased premises. Tenant shall make no structural alterations or improvements without the Landlord's prior written approval of the plans and specifications therefor. (d) Tenant will make no unlawful use of said premises and agrees to comply with all valid regulations of the Board of Health, municipal ordinances, the laws of the State of Iowa and the federal government, but this provision shall not be construed as creating any duty by Tenant to members of the general public. If Tenant, by the terms of this Lease is leasing premises on the ground floor, it will not allow trash of any kind to accumulate on said premises or the parking areas, and it will remove same from the premises at its own expense. Tenant also agrees to remove snow and ice and other obstacles from the sidewalk and parking areas on or abutting the premises. (e) In the event Tenant makes any improvement upon the premises,Tenant shall have responsibility for and perform all acts necessary for compliance with the Americans with Disabilities Act, if applicable. 7. FACILITY SERVICES. (a) UTILITIES AND SERVICES. Tenant, during the term of this Lease, 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 leased premises. (b) AIR CONDITIONING AND HEATING equipment shall be furnished by Tenant, and Tenant shall maintain, repair, and replace same. (c) JANITOR SERVICE shall be furnished at the expense of Tenant. 8. END OF TERM. (a)This Lease shall terminate upon expiration of the original term. (b) SURRENDER OF PREMISES AT END OF TERM; REMOVAL OF FIXTURES. Tenant agrees that upon the termination of this Lease it will surrender, yield up and deliver the leased premises 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 insurance. [See also 11(a) and 11(e) below] (c) Before expiration of the Lease term, Tenant may remove any fixtures and equipment. If Tenant needs additional time for its salvage activities, Landlord may consent,which consent shall not be unreasonably withheld,to allow Tenant on the premises for a period of up to 30 additional days for the limited purpose of conducting its salvage activities. Tenant shall at all times during its salvage activities leave the premises secure and shall not leave any dangerous condition. Tenant agrees that the indemnities set forth in Section 12 shall also apply to Tenant's activities on the premises that may occur after expiration of the Lease term. (d) HOLDING OVER. Tenant shall not continue to occupy the premises beyond the Lease term without the express prior written consent of Landlord pursuant to Section 26(c). 9. ASSIGNMENT AND SUBLETTING. Tenant may not assign this Lease or sublet the premises or any part thereof; provided, however, that it may sublet the premises to Riley's Floors and More, Inc. Notwithstanding anything to the contrary in this paragraph, Tenant may assign this Lease to the surviving entity in connection with any corporate merger, consolidation or reorganization to which Tenant is a party. 10. PROPERTY TAXES. Landlord shall pay all installments of real estate taxes, and all increases in installments, that would become delinquent if not paid during the term of this Lease. Tenant shall timely pay all taxes, assessments, or other public charges levied or assessed by lawful authority against its personal property on 2 the premises during the term of this Lease. Landlord shall pay all special assessments that would become delinquent if not paid during the term of this Lease. Each party reserves the right to protest any assessment of taxes. 11. INSURANCE. (a) Tenant shall keep in force its current property coverage for fire and those items usually covered by extended coverage, and Tenant shall name Landlord as loss payee(building/premises only). Landlord may, but is not required to, procure additional coverage for its own property interests in the premises and its liability in regard thereto. Tenant will procure and deliver to Landlord 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 Tenant's share of such insurance proceeds are hereby assigned and made payable to the Landlord to secure rent or other obligations then due and owing by Tenant to Landlord. To the extent permitted by their policies, Landlord and Tenant waive all rights of recovery against each other. (b) Tenant 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 $3,000,000 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 Tenant, its employees and agents. Certificates or copies of said policies, naming the Landlord as an additional insured, and providing for thirty(30)days'advance notice to the Landlord before cancellation, shall be delivered to the Landlord within no later than the date that Tenant begins to occupy the leased premises. A renewal certificate shall be provided to Landlord prior to expiration of any policy. (c) Tenant 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 Tenant upon which the Landlord by law or by the terms of this Lease, has or shall have a lien. (d) Tenant further agrees to comply with recommendations of Iowa Insurance Services Office and to be liable for and to promptly pay, as if current rental, any increase in insurance rates on said premises and on the building of which said premises are a part, due to increased risks or hazards resulting from Tenant's use of the premises otherwise than as herein contemplated and agreed. 12. INDEMNITY. Except as to any negligence of the Landlord or its agents in the performance of any obligation of Landlord under this Lease, and to the extent not covered by insurance maintained by Landlord or Tenant,Tenant will protect, indemnify, and save harmless the Landlord from and against any and all loss, costs, damage, and expenses occasioned by, or arising out of, any accident or other occurrence causing or inflicting injury and/or damage to any person or property, happening or done, in, upon, or about the leased premises, or due directly or indirectly to the tenancy, use,or occupancy thereof, or any part thereof by the Tenant or any person claiming through or under the Tenant. Prior to occupancy of the leased premises hereunder, Tenant has had the opportunity to test the premises for toxic or hazardous substances, mold, and other environmental matters,and Tenant agrees that the indemnities set forth in this paragraph shall include but not be limited to any claims, demands, losses, or causes of action by Tenant or any person claiming through or under the Tenant for such matters or arising from or relating to any third-party claims for such matters. Tenant's indemnity shall not include any environmental conditions that occur on the leased premises during the term of this Lease or any extension thereof pursuant to Section 26(c), unless such condition was caused by Tenant or a person claiming through or under Tenant. The provisions of this paragraph shall survive the expiration, abandonment, or termination of this Lease. 13. FIRE AND CASUALTY. (a) PARTIAL DESTRUCTION OF PREMISES. In the event of a partial destruction or damage of the leased premises which causes a business interference by preventing the conduct of a normal business operation, and which damage is reasonably repairable within thirty(30)days after its occurrence,this Lease shall not terminate. Notwithstanding the foregoing, in the event of partial destruction Tenant shall have the option to repair such damages at its own cost and expense or to terminate this Lease by written notice to Landlord. In the event of termination,Tenant shall surrender possession within ten(10)days after such notice issues and,each party shall be released from all future obligations hereunder. (b) ZONING. If the zoning ordinance of the municipality in which this property is located makes it impossible for Landlord, using diligent and timely effort,to obtain necessary permits and to repair and/or rebuild so that Tenant is able to conduct its business on these premises,then such partial destruction shall be treated as a total destruction as in the next paragraph provided. 3 (c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or damage of the leased premises, including the parking area(if a parking area is a part of the subject matter of this Lease), so that Tenant is not able to conduct its business on the premises, and which damages cannot be repaired within sixty(60)days, this Lease may be terminated at the option of the Tenant. Such termination in such event shall be effected by written notice to Landlord. Tenant shall surrender possession within ten (10)days after such notice issues and, each party shall be released from all future obligations hereunder. 14. CONDEMNATION. N/A. 15. TERMINATION OF LEASE AND DEFAULTS OF TENANT. (a)TERMINATION UPON EXPIRATION OR ABANDONMENT. This Lease shall terminate upon expiration of the demised term. Upon Tenant's abandonment of the premises by failure to engage in its usual and customary business activities on the premises for more than fifteen (15) consecutive business days, this Lease may at the option of the Landlord be canceled and forfeited, provided, however, before any such cancellation and forfeiture except as provided in 15(b)below, Landlord shall give Tenant a written notice specifying the apparent abandonment and stating that this Lease will be canceled and forfeited ten(10) days after the giving of such notice, unless Tenant resumes the conduct of its usual and customary business activities upon the leased premises within such grace period. As an additional optional procedure or as an alternative to the foregoing (and neither being exclusive of the other), Landlord may proceed as provided in paragraph 21 below. (b) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is adjudicated a bankrupt or in the event of a judicial sale or other transfer of Tenant's leasehold interest by reason by any bankruptcy or insolvency proceedings or by other operation of law, but not by death, and such bankruptcy, judicial sale, or transfer has not been vacated or set aside within ten (10) days from the giving of notice thereof by Landlord to Tenant, then and in any such events Landlord may, at its option, immediately terminate this Lease and, upon giving of ten (10) days' written notice by Landlord to Tenant, re-enter said premises, all to the extent permitted by applicable law. (c) In (a) and (b) above, waiver as to any default shall not constitute a waiver of any other or subsequent default. (d) Acceptance of keys, advertisirg, and re-renting by the Landlord upon the Tenant's default shall be construed only as an effort to mitigate damages by the Landlord, and not as an agreement to terminate this Lease. 16. 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, covenants, 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, covenant, 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 the date of advance. 17. SIGNS. (a)Tenant shall have the right and privilege of attaching, affixing, painting, or exhibiting signs on the leased premises, provided only(1)that any and all signs shall comply with the ordinances of the municipality in which the property is located and with the laws of the State of Iowa; (2) such signs shall not change the structure of the building; (3) such signs if and when taken down shall not leave a dangerous condition upon the leased premises; and (4) such signs shall be subject to the prior written approval of the Landlord, which approval shall not be unreasonably withheld. Landlord hereby consents to Tenant's current signage. 18. 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 lien 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 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 Landlord, the Tenant 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. 19. LANDLORD'S LIEN AND SECURITY INTEREST. N/A. 20. SUBSTITUTION OF EQUIPMENT, MERCHANDISE. ETC. Tenant shall have the right, from time to time during the term of this Lease, to sell or otherwise dispose of any personal property of the Tenant situated on the 4 leased premises, when in the judgment of the Tenant it shall have become obsolete, outworn, or unnecessary in connection with the operation of Tenant's business on the leased premises. 21. RIGHTS CUMULATIVE. The various rights, powers, options, elections, and remedies of either party as 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 long as any default remains in any way unremedied, unsatisfied, or undischarged. 22. 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 registered or certified mail, return receipt requested, by the United States mail and so deposited in a United States mail box. 23. 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 Lease is held in joint tenancy, the successor in interest shall be the surviving joint tenant. 24. CHANGES TO BE IN WRITING. None of the covenants, provisions, terms,or conditions of this Lease to be kept or performed by Landlord or Tenant shall be in any manner modified,waived,or abandoned,except by a written instrument duly signed by the parties and delivered to the Landlord and Tenant. This Lease contains the entire agreement of the parties and supersedes any and all discussions, negotiations, understandings, or agreements pertaining to the subject matter hereof. 25. RELEASE OF DOWER. N/A. 26. OTHER TERMS. (a) Tenant may continue to make use of the adjacent garage building (the"Garage")for storage purposes, to the same extent and in the same manner as Tenant has used it prior to the start date of this Lease. Tenant's use of the Garage shall be its sole risk, and Tenant agrees that the indemnity obligations set forth in Section 12 above shall apply equally to Tenant's activities in and about the Garage. Tenant shall bear all cost and expense associated with its use of the Garage, including but not limited to utilities and maintenance. Tenant shall pay no rent for its use of the Garage. (b) Tenant agrees that Landlord may have access to the outdoor portion of the leased premises so that Landlord, its contractors and agents, may conduct environmental testing. Tenant agrees to cooperate with such parties for this purpose. (c) Tenant is building a new facility for its operations and agrees to diligently pursue completion of same so that Tenant may vacate the leased premises no later than September 3, 2007. However, in the event that construction delays beyond the reasonable control of Tenant do not permit attainment of this goal, then the parties agree to negotiate together in good faith for a reasonable extension of this Lease. 27. 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 duly executed this Business Property Lease as of the date first written above. [signatures on next page] 5 LANDLORD TENANT City of Waterloo, Iowa By. Timothy J. Hurley, y r CGu StepheJ pRiley Attes . Nancy E kert, C herk 6