ABC Supply Lease AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Set Public Hearing on Proposed ABC Lease
DATE: May 4, 2011
Economic Development Director Dave Heiar is recommending that a public hearing be
set for June 6, 2011, on a lease with ABC Roofing for the City owned building at 10 S.
Main Street.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jk
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Dave Heiar, Economic Development
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V)14c Ce41 Jt Michael C. V illigen (TH)
Dubuque
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2007
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Set Public Hearing on Proposed ABC Lease
DATE: May 3, 2011
Dubuque
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AF- AmedcaCity
1 1 1 1 f
2007
PURPOSE
The intent of this memorandum is to request that the City Council set a public hearing
on the proposed lease of a building located at 10 S. Main Street to American Builders
and Contractor's Supply Co., Inc. (ABC Supply).
BACKGROUND
In 2005, the City assisted Tri -State Industries in a relocation to the Dubuque Industrial
Center West. The Iowa Department of Transportation acquired Tri- State's property at
10 S. Main Street in anticipation of the expansion of the Julien Dubuque Bridge project.
The City agreed to give the company land in the Dubuque Industrial Center West in
return for the company's right to reacquire any excess ROW not needed by the IDOT for
this project.
In February of 2010, the City purchased this excess ROW, which includes a 33,452 sq.
ft. building, for $330,000 from the Iowa Department of Transportation (IDOT). This is a
land purchase contract and will be paid over 6 years. At the time of the purchase, the
building was leased to ABC Supply Co. The City assumed the lease with ABC Supply
Co., which expires on June 1, 2011. In the past several months, City staff have
negotiated terms of a lease renewal with the company. Prior to approving this lease,
the Council must hold a public hearing as required by the Iowa Code.
DISCUSSION
ABC currently pays $2,000 per month rent as the City assumed the lease arrangement
ABC had with the previous owner, IDOT. The proposed terms of the new lease,
increase the initial monthly rate to $3,500 and requires the tenant to reimburse the City
for any property taxes on this site. The lease is for 5 years and includes an annual 3%
increase. ABC also leases property in this area from Hendricks Commercial Properties,
LLC. This lease also expires within the next year. Should ABC not be able to negotiate
a lease with Hendricks Commercial Properties, LLC, they would have the right to
terminate the lease with the City prior to June 1, 2012, with a 30 day notice. The lessee
will replace the current lighting system for an estimated cost of $13,000. The City will
be responsible for 1 /2 of the actual cost for this building improvement upto $6,500 which
will be deducted from the first year's lease payments. Lessee will pay for future building
repairs that cost $1,000 or less. The City will be responsible for repairs over $1,000.
RECOMMENDATION
I recommend that the City Council set a public hearing for June 6, 2011 on the
proposed 5 year lease to American Builders and Contractor's Supply Co., Inc.
F: \USERS\Econ Dev\ABC Supply\20110503_ABC Supply_Set Public Hearing Proposed Lease Memo.doc
RESOLUTION NO. 168 -11
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY THE
CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA AND
AMERICAN BUILDERS AND CONTRACTOR'S SUPPLY CO., INC.
WHEREAS, the City of Dubuque, Iowa (City) owns the real property located at 10
S. Main Street in the City of Dubuque, Iowa, legally described as follows:
Parcel "B ", located in Block 14 of Dubuque Harbor Company Addition, in the City
of Dubuque, as shown and described in Warranty Deed recorded April 29, 2005
in Document No. 2005 - 00006524 in the records of Dubuque County, Iowa
(the Real Estate); and
WHEREAS, City and American Builders and Contractor's Supply Co., Inc. have
negotiated a Lease Agreement for a building located on the Real Estate, a copy of which
Lease Agreement is on file at the office of the City Clerk, City Hall, 13 and Central
Avenue, Dubuque, Iowa; and
WHEREAS, the City Council believes it is in the best interests of the City of
Dubuque to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the Real Estate
by Lease Agreement between City and American Builders and Contactor's Supply Co.,
Inc.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing- described real property, to
be held on the 6 th day of June, 2011, at 6:30 o'clock p.m. at the Historic Federal Building,
Council Chambers, 350 W. 6 th Street, Dubuque, Iowa.
Passed, approved and adopted this 16 day of May, 2011.
Attes Kevin S. ' Thstahl, Act' g Ci y Clerk
F: \USERS \Econ Dev\ABC Supply\20110504 Reso for set public hearing 5 yr Lease ABC supply_bal.doc
Roy D. ` uol, Mayor
RESOLUTION
NO.168-11
INTENT TO DISPOSE
OF AN INTEREST, IN
REAL PROPERTY
OWNED BY THE CITY
OF DUBUQUE BY
LEASE BETWEEN THE
CITY OF DUBUQUE,
IOWA AND AMERI-
CAN BUILDERS AND
CON'TRACTOR'S SUP-
PLY CO, INC.
WHEREAS, the City of
Dubuque, Iowa (City)
owns the real property
located at 10 S. Main
Street in the City of Du-
buque, Iowa, legally
described as follows:
Parcel "B ", located in
Block 14 of Dubuque
Harbor Company Addi-
tion, in the City of Du-
buque, as shown and
described in Warranty
Deed recorded April 29,
2005 in Document No.
2405- 00006524 in the
records of Dubuque
County, Iowa
(the Real Estate); and
WHEREAS, City and
American . Bpilders and
Contractor's Supply
Co., Inc. have negotiat-
ed a Lease Agreement
for a building located
on the Real Estate, a
copy of which Lease
Agreement is on file at
the office of the City
Clerk, City Hall, 13th
Central Avenue,'
Dubuque, Iowa; and
WHEREAS, the City
Council believes it is in
the best interests of
the City of Dubuque to
approve the Lease
Agreement.
NOW, THEREFORE, BE
IT RESOLVED BY THE
'CITY COUNCIL OF THE
CITY OF DUBUQUE, IO-
WA:
Section is The City of
Dubuque intends to
dispose of its interest
in the Real Estate by
Lease Agreement be-
tween City and Ameri-
can Builders and Con -
tactor's Supply Co.,
Inc. •
Section 2. The City
Clerk is hereby author-
ized and directed to
cause this Resolution
and a notice to be pub-
lished as prescribed by
Iowa Code Section
364.7 of a public hear -•
ing on the City's intent
to dispose • of the
foregoing - described
real property, to be
held on the 6th day of
June, 2011, at 6:30
o'clock p.m. at the His-
toric Federal Building,
Council Chambers, 350
W. 6th Street, Dubu-
que, Iowa.
Passed, approved and
adopted this 16th day
of May, 2011.
Roy D. Buol, Mayor
Attest Kevin S.
Firnstahl,
Acting City Clerk
1t 5/20
STATE OF IOWA {SS:
DUBUQUE COUNTY
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: May 20, 2011, and for which the charge is $24.66.
Subscribed to before mJ?,, Notary Public in and for Dubuque County, Iowa,
,20//
this 9 day of
CERTIFICATION OF PUBLICATION
-aa47
75~1/4Q
tary Public in and for Dubuque County, Iowa.
MARY K. WESTERME1'
COmmI /OiDn NUMb6r 154
1 �
Prepared by: Barry A. Lindahl, Esq. 330 Main Street, Suite 300 Dubuque IA 52001 563 583-4113
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
AMERCIAN BUILDERS & CONTRACTORS SUPPLY CO., INC.
This Lease Agreement (the Lease), dated for reference purposes this ay
of Mazi , 2011, is made and entered into by and between the City of
Dubuque, J Iowa, an Iowa municipal corporation (Lessor), American Builders &
Contractors Supply Co., Inc. (Lessee).
SECTION 1. DEMISE AND TERM.
1.1. In consideration of the rents hereinafter reserved and the terms, covenants,
conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the
real property known as 10 South Main St. Dubuque, IA 52003 which is comprised of
approximately 20,000 sq. ft. of warehouse as shown on Exhibit A attached to and made
a part of this Lease together with any and all easements and appurtenances thereto and
subject to any easements and restrictions of record (the Demised Premises), to have
and to hold for an initial term commencing as of the 1st day of June, 2011 and ending at
midnight on the 31st day of May, 2016 (the Initial Term), subject to all of the terms,
covenants, conditions and agreements contained herein. Tenant shall have the right to
terminate the Lease any time prior to June 1, 2012 by giving the Landlord a thirty (30)
day written notice.
1.2. Upon commencement of the Initial Term of this Lease, all prior leases between
Lessor and Lessee for the Demised Premises or any part thereof shall terminate.
1.3. Use of Premises. Lessee acknowledges that the Demised Premises is currently
zoned HI Heavy Industrial. Notwithstanding such zoning, Lessee agrees that the
Demises Premises shall not be used for any of the following uses:
Slaughterhouses or stockyards;
Manufacture or processing of the following materials: acid, lime or lime products;
detergent; and ammonia or chlorine;
Sanitary landfills;
Sewage treatment plants;
Crematoriums; reduction plants; foundries, forges or smelters; and
Junk yards, salvage yards.
1.4. Lessee further agrees that the Demised Premises shall be used only for the
following purposes and no others without the prior written consent of Lessor:
Sales and Storage of Building Material
051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003
SECTION 2. RENT, TAXES, AND OTHER PAYMENTS
2.1. Rent.
(1) Lessee shall pay Lessor, in addition to taxes, fees (including but not
limited to storm water fees), rates, charges, levies, assessments, and all
other charges required to be paid under this Lease by Lessee, rent for the
first year of the Term in the amount of $42,000, in twelve equal monthly
payments of $3,500 commencing on the 1 day of June, 2011, and on the
first day of each month thereafter. Rent for the remainder of the Term
shall be paid in accordance with the following schedule:
Period Annual Rent Monthly Rent
June 1, 2011 to May 31, 2012 $42,000.00 $3,500.00
June 1, 2012 to May 31, 2013 $43,260.00 $3,605.00
June 1, 2013 to May 31, 2014 $44,557.80 $3,713.15
June 1, 2014 to May 31, 2015 $45,894.60 $3,824.55
June 1, 2015 to May 31, 2016 $47,271.37 $3,939.28
2.2. Taxes. Lessee shall pay all property taxes on the Leased Premises, including
the land and any improvements thereon, due and payable during the term of the Lease.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES
3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean the
following personal property located on the Demised Premises used in Lessee's
business:
Industrial Racking
Title to Lessee's trade fixtures (the Trade Fixtures) is and shall be the sole and
exclusive property of Lessee during the term of this Lease and shall remain the sole and
exclusive property of Lessee after the expiration or termination of this Lease, for
whatever reason. Lessor acknowledges and understands that it shall have no right, title
or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or
thereafter (except as hereinafter provided). Lessor acknowledges and agrees that
Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures,
to remove them from the Demised Premises, or to otherwise deal with all or any portion
of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior
written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in
recordable form prepared by Lessee stating that Lessor has no interest or right in or to
Lessee's Trade Fixtures, as well as any other or further document which Lessee may
reasonably request from Lessor.
2
3.2. Improvements.
(1) Improvements on the Demised Premises as of the commencement date of
this Lease are the Building.
On delivery of possession of the Demised Premises to Lessee, Lessee shall not
construct any improvements on the Demised Premises without the prior written
consent of Lessor, which consent shall not be unreasonably withheld. Upon any
termination of this Lease, by reason of any cause whatsoever, if any new
Improvements or Improvements existing at the time of the execution of this
Lease or any part thereof shall then be on the Demised Premises, all of Lessee's
right, title, and interest therein shall cease and terminate, and title to the
Improvements shall vest in Lessor, and the Improvements or the part thereof
then within the Demised Premises shall be surrendered by Lessee to Lessor. No
further deed or other instrument shall be necessary to confirm the vesting in
Lessor of title to the Improvements. However, upon any termination of this
Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver
to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest
in or to the Improvements has expired, and that title to the Improvements has
vested in Lessor. Lessor reserves the right to require Lessee to remove some or
all of the Improvements which Lessee shall accomplish within 30 days of the
expiration of this Lease Agreement.
SECTION 4. [Section left intentionally blank]
SECTION 5. TAXES.
5.1. Lessee agrees to reimburse Lessor within ten (10) days of the receipt of an
invoice for the real estate taxes upon the real estate of the Demised Premises that
become due and payable during the term hereof and which would become delinquent if
not so paid during the term hereof. Lessor shall further provide to Lessee official
receipts of the appropriate taxing authority or other evidence satisfactory to Lessee
evidencing payment thereof.
5.2. During the term of this Lease, Lessee further agrees to reimburse Lessor all
other taxes, fees (including but not limited to storm water fees), rates, charges, levies
and assessments, general and special, of every name, nature and kind, whether now
known to the law or hereafter created which may be taxed, charged, assessed, levied or
imposed upon said real estate and which become payable during the term hereof and
which would become delinquent if not so paid during the term hereof, any buildings or
improvements thereon which may be taxed, charged, assessed, levied or imposed upon
the leasehold estate hereby created and upon the reversionary estate in said real estate
during the term hereof and which become payable during the term hereof and which
would become delinquent if not so paid during the term hereof, and all such other taxes,
fees, rates, charges, levies and assessments shall be paid by Lessee as they become
due and before they become delinquent during the term hereof. The foregoing
3
notwithstanding, Lessee shall only be responsible for the payment of any assessments,
general or specific, so long as such assessments are calculated over the longest period
permitted by law, in which case Lessee shall be responsible for paying those payments
falling due within the Term of the Lease.
5.3. Lessee agrees to timely pay all taxes, fees, assessments or other public charges
levied or assessed by lawful authority (but reasonably preserving Lessee's rights of
appeal) against its personal property on the premises, during the term of this Lease.
5.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes,
surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder.
5.5. Lessee shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of Lessor if necessary, the payment or satisfaction of any
such taxes, fees, assessments, rates, charges or levies so agreed to be paid by
Lessee, if the validity thereof, or the right to assess or levy the same against or collect
the same from said Demised Premises or Improvements, shall be disputed. Upon the
conclusion of any such suit or proceedings, or not less than three (3) months prior to the
date when the right to redeem therefrom expires, whichever will be the earlier, Lessee
shall promptly pay and satisfy such disputed tax, fee, assessment or other charge as
finally determined, together with all expenses, costs and attorneys' fees whatsoever
incurred in connection therewith.
SECTION 6. REPAIRS.
6.1. Lessee shall at all times during the term of this Lease, keep the Demised
Premises and the Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Demised Premises, in good order, condition and repair, casualties
and ordinary wear and tear excepted and to a condition satisfactory to Lessor. Lessee
shall keep the Demised Premises in such condition as may be required by law and by
the terms of the insurance policies furnished pursuant to this Lease, whether or not
such repair shall be interior or exterior, and whether or not such repair shall be of a
structural nature. Notwithstanding the foregoing, Tenant's responsibility for the costs
and expenses for normal maintenance, repairs and replacements shall be limited to
$1,000 per occurrence. Upon reasonable notice to Lessee, Lessor may, at its discretion
and at its cost, conduct an annual inspection of the Demised Premises to determine
Lessee's compliance with this Section 6.
6.2. Lessor agrees to pay for one half of the costs (up to $13,000) documented by
Lessee for replacement of current lighting fixtures with new ballasts and T -5 lights.
Lessee is authorized to deduct the agreed upon costs, from the lease payments during
the first year of the Term, prior to May 31, 2012.
6.3. Lessor shall only be responsible for the costs and expenses for normal
maintenance, repairs and replacements which exceed $1,000 per occurrence.
Otherwise, Lessor shall have no obligation to Lessee for any maintenance, repair or
4
replacement expense of any kind on the Demised Premises.
SECTION 7. COMPLIANCE WITH LAW.
7.1. During the term of this Lease, Lessee shall comply with all local, state and
federal laws applicable to Lessee's use of the Demised Premises, including but not
limited to the Americans with Disabilities Act and the Smoke Free Air Act.
7.2. Lessee shall not commit waste on the Demised Premises except as necessary
for its business purposes including the removal or construction of any buildings and
Improvements on the Demised Premises, and shall be liable for any damages to or
destruction of any buildings or Improvements on the Demised Premises resulting from
waste and shall be required to repair or rebuild such buildings or Improvements.
Lessee shall not remove any Improvements on the Demised Premises without the prior
written approval of Lessor.
SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written
consent, which consent shall not be unreasonably withheld, make any alteration,
addition, or modification to any Improvement on the Demised Premises that exceeds
Five Thousand Dollars ($5,000.00) in cost. Any alteration, addition, or modification of
less than Five Thousand ($5,000.00) Dollars shall not require Lessor's consent.
SECTION 9. USE OF DEMISED PREMISES.
9.1. Lessee shall not knowingly use or allow the Demised Premises or any buildings
or Improvements thereon or any appurtenances thereto, to be used or occupied for any
unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer
any act to be done or any condition to exist within the Demised Premises or in any
Improvement thereon, or permit any article to be brought therein, which is dangerous,
unless safeguarded as required by law, or which, in law, constitute a nuisance, public or
private, or which may make void or voidable any insurance in force with respect thereto.
SECTION 10. INSURANCE.
10.1. Lessee shall maintain during the term of this Lease insurance as set forth in the
City's standard Insurance Schedule for Lessees of City Property, as such uniform,
standardized schedule may from time to time be amended. The current Insurance
Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall
provide written notice of any amendment to the Insurance Schedule not less than sixty
days prior to the effective date of such amendment.
10.2. All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the
laws of the State of Iowa to assume the risks covered thereby or Lessee may at its
election self- insure itself pursuant to the aforementioned guidelines. Lessee shall
deposit annually by not later than July 1 of each year with City a certificate or
5
certificates or binders of the respective insurers stating that such insurance is in force
and effect. Lessee shall furnish City evidence satisfactory to City that the policy has
been renewed or replaced by another policy conforming to the provisions of this , or that
there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or blanket or umbrella policies, or a combination
thereof, which provide the total coverage required herein, in which event Lessee shall
deposit with City a certificate or certificates of the respective insurers as to the amount
of coverage in force upon Improvements, provided, however, the specific limit shall not
be impaired.
10.3. Lessee agrees to notify City immediately in the case of damage exceeding
$1,000.00. in amount to, or destruction of, Improvements or any portion thereof resulting
from fire or other casualty.
SECTION 11. LESSOR'S WARRANTIES AND REPRESENTATIONS
11.1. Lessor's Representation of Good Title. Lessor covenants and warrants that
Lessor is lawfully seized in possession of the Demised Premises, and that it has full
right and authority to enter into this Lease for the full term hereof, and covenants and
agrees that upon paying the rent provided for herein, and upon Lessee's performing the
covenants and agreements of this Lease required to be performed by said Lessee, that
it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants
to Lessee that the Demised Premises are properly zoned for the conduct of the
operation of Lessee's business.
11.2. Lessor makes no representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION.
12.1. Lessee Compliance With Law. Lessee shall comply with all applicable local,
state and federal laws, rules, regulations and permits with regard to the Demised
Premises and its use, occupancy and control of the Demised Premises.
12.2. Environmental Matters.
(1) Lessee covenants and agrees that Lessor shall have no responsibility for
or liability arising from any release of a Hazardous Substance which is caused by
or results from Lessee, Lessee's use, occupancy or control of the Demised
Premises, except for Lessor Hazardous Substances (any Hazardous Substance
which leaches or migrates upon the Demised Premises from any property owned
by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not
have any responsibility for any Hazardous Substance which leaches or migrates
upon the Demised Premises from any adjacent property or any release of a
Hazardous Substances which is caused by Lessor or which pre- exists the date of
6
this Lease, except as follows: (a) Lessee shall be responsible for known pre-
existing releases for which Lessee fails to take due care and adequate
precaution and /or for which Lessee's actions or inactions cause a worsening of
the release, and (b) Lessee shall provide full cooperation, assistance, and
access to Lessor or other parties investigating and /or responding to a threatened
or actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance in, on or about the Demised Premises of which Lessee
suspects or has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any release of Hazardous Substance for
which Lessee is responsible under this Section 12.2(1) following advance notice
to Lessor. Such response shall include, without limitation, notification to
appropriate governmental authorities, as may be required by law. Lessee shall
seek and obtain the concurrence of Lessor as to any such response. Lessee
shall respond to such release to the full extent required by law in no event shall
Lessee allow limitations or restrictions to be placed on the Demised Premises
without the written consent of the Lessor.
(4) Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Demised Premises or allow the manufacture,
treatment, or disposal of Hazardous Substances on the Demised Premises.
Lessee shall use and store on the Demised Premises only those Hazardous
Substances as are associated with its regular business activities, and then only
as allowed by law.
(5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which
is or becomes regulated by any local government, the State of Iowa or the United
States Government. It includes, without limitation, any material or substance
that is (i) defined as a "hazardous substance" or "hazardous waste" under
Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos
containing materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi)
defined as a "hazardous substance" pursuant to § 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et
seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C.
§ 6991 et seq.] The term "Hazardous Substance" shall not include any air
emissions discharged into the atmosphere as allowed by a duly issued permit
from the applicable governmental agency.
7
SECTION 13. INDEMNIFICATION.
13.1. Indemnification of Lessee. To the extent allowed by law, Lessor will defend,
indemnify and save harmless Lessee from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Lessee by reason of (a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Demised Premises and resulting from any
act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with
any of the terms of this Lease and (c) any breach on the part of Lessor of any warranty
or representation contained in Section 11. In case any action, suit or proceeding is
brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense
and discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessee, which approval will not be unreasonably
withheld.
13.2. Indemnification of Lessor. Lessee will defend, indemnify and save harmless
Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any
accident, injury to or death of persons or loss of or damage to property occurring on or
about the Demised Premises during the term of this Lease and resulting from any
negligence of Lessee or anyone claiming by, through or under Lessee during the term
of the Lease and (b) any failure on the part of Lessee to perform or comply in any
material respect with any of the material terms of this Lease, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Section 12.
In case any action, suit or proceeding is brought against Lessor by reason of such
occurrence, Lessee will, at Lessee's expense and discretion, either defend such action,
suit or proceeding, or cause the same to be defended by counsel approved by Lessor,
which approval will not be unreasonably withheld.
13.3. Survival. The obligations and liabilities under this Section shall survive and
continue in full force and effect and shall not be terminated, discharged or released, in
whole or in part, irrespective of the termination or expiration of the term of this Lease.
SECTION 14. CONDEMNATION.
14.1. Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the Improvements thereon shall be taken in
the exercise of the power of eminent domain by any sovereign, municipality or other
public or private authority, then this Lease shall terminate on the date of vesting of title
in such taking and any prepaid rent shall be apportioned as of said date. Substantially
all of the Demised Premises and the Improvements thereon shall be deemed to have
been taken if the remaining portion of the Demised Premises shall not be of sufficient
size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a
manner similar to that prior to such taking.
8
14.2. Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
(1) To Lessor, the amount of the award attributable to the Demised Premises,
determined as if this Lease was not in effect at the time of such award, excluding
therefrom the amount of the award attributable to new Improvements constructed
by Lessee but not Improvements existing at the commencement of the Term of
this Lease, and all other sums not directly attributable to the value of the Land
constituting the Demised Premises;
(2) To Lessee, the entire award except that portion allocated to Lessor above.
14.3. Partial Condemnation.
(1) If less than all or substantially all of the Demised Premises or the
Improvements thereon shall be taken in the exercise of the power of eminent
domain by any sovereign, municipality or other public or private authority, then
Lessee, at its option, may elect to continue this Lease in full force and effect or
terminate this Lease. If Lessee shall elect to maintain this Lease in full force and
effect, the award for such partial condemnation shall be allocated as provided in
14.2, and Lessee shall proceed with reasonable diligence to carry out any
necessary repair and restoration so that the remaining Improvements and
appurtenances shall constitute a complete structural unit or units which can be
operated on an economically feasible basis under the provisions of this Lease.
In the event Lessee elects to continue this Lease in full force and effect after a
partial condemnation, the Rent shall be reduced in proportion to the area of the
Demised Premises taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be
not less than 60 days nor more than 360 days after delivery of such notice to
Lessor (the Termination Date). In the event Lessee terminates this Lease, as
provided for in this 13.3, Lessee shall be entitled to the entire award for such
partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the Improvements thereon or the appurtenances thereto shall be taken at
any time during the term of this Lease in the exercise of the power of eminent domain
by any sovereign, municipality, or other authority, the term of this Lease shall not be
reduced or affected in any way, and Lessee shall continue to pay in full the rent,
additional rent and other sum or sums of money and charges herein reserved and
provided to be paid by Lessee, and the entire award for such temporary taking shall be
paid to Lessee. Lessee shall repair and restore any and all damage to the Demised
9
Premises and the Improvements as soon as reasonably practicable after such
temporary taking.
SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
by Lessee without the prior written consent of Lessor, which consent shall not be
unreasonably withheld, provided said third party agrees to comply with the terms and
conditions of this Lease. Lessee may sublet parts of the Demised Premises without the
prior consent of Lessor provided Lessee's subtenants agree to comply with the
applicable terms and conditions of this Lease, and provided further that Lessee shall
remain responsible to Lessor for the terms and conditions of this Lease.
SECTION 16. DEFAULT.
16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessee has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease. Lessor shall thereafter have the right to enter and take possession
of the Demised Premises with process of law and to remove all personal property from
the Demised Premises and all persons occupying the Demised Premises and to use all
necessary force therefor and in all respects to take the actual, full and exclusive
possession of the Demised Premises and every part of the Demised Premises as of
Lessor's original estate, without incurring any liability to Lessee or to any persons
occupying or using the Demised Premises for any damage caused or sustained by
reason of such entry on the Demised Premises or the removal of persons or property
from the Demised Premises.
16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or
neglects to observe, keep or perform any of the covenants, terms or conditions
contained in this Lease on its part to be observed, kept or performed, the Holder of any
indebtedness secured by an encumbrance on the leasehold estate under this Lease
shall have thirty (30) days after receipt of written notice from Lessor setting forth the
nature of Lessee's default and a reasonable time thereafter if it shall have commenced
foreclosure or other appropriate proceedings in the nature thereof within such thirty (30)
days and is diligently prosecuting such proceedings, but in no event longer than ninety
(90) days, within which to endeavor to make good or remove the default or cause for
termination of the Lease. All right of Lessor to terminate this Lease on the failure or
neglect of Lessee to observe, keep and perform the covenants, terms and conditions of
this Lease is, and shall continue to be, at all times prior to payment in full of the
indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having
first given the Holder written notice thereof and the Holder having failed to cause the
1 0
default or cause for termination to be made good or removed within thirty (30) days after
receiving written notice of default or cause for termination or within a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in
the nature of foreclosure within such thirty (30) days and is diligently prosecuting such
proceedings, but in no event longer than ninety (90) days. In the event that the Lease is
terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the Holder has complied with the terms of this 16.2, then Lessor at Holder's
option, shall enter into a new lease with Holder or the successful bidder at foreclosure
on the same terms as this Lease, for the term then remaining, and specifically
preserving all unexercised options.
16.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessee setting forth the nature of
Lessor's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessor has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessee shall have all rights available to it provided by law or equity.
SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as
a party shall fail or neglect to comply with and perform any term, covenant, condition or
agreement to be complied with or performed by such party hereunder, then, following
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded Lessee pursuant to 16.1 above, but in no event longer than
ninety (90) days), the other party, at such other party's option, in addition to all other
remedies available to such other party, may perform or cause to be performed such
work, labor, services, acts or things, and take such other steps, including entry onto the
Demised Premises and the Improvements thereon, as such other party may deem
advisable, to comply with and perform any such term, covenant, condition or agreement
which is in default, in which event such defaulting party shall reimburse such other party
upon demand, and from time to time, for all costs and expenses suffered or incurred by
such other party in so complying with or performing such term, covenant, condition or
agreement. The commencement of any work or the taking of any other steps or
performance of any other act by such other party pursuant to the immediately preceding
sentence shall not be deemed to obligate such other party to complete the curing of any
term, covenant, condition or agreement which is in default.
SECTION 18. QUIET ENJOYMENT. Lessor covenants that at all times during the
term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet
enjoyment of the Demised Premises or any part thereof shall not be disturbed by any
act of Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the
foregoing, Lessor shall have the right upon reasonably notice to Lessee to enter the
Demised Premised at any time to determine whether Lessee is in compliance with the
requirement of this Lease.
11
SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any
time and from time to time during the term of this Lease, within ten (10) days after
request by the other party hereto or by any lender having an interest in Lessee's
leasehold estate, it will execute, acknowledge and deliver to the other party or to such
lender or any prospective purchaser, assignee or any mortgagee designated by such
other party, a certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as modified,
and identifying the modification agreements), (b) the date to which rent has been paid,
(c) whether or not there is any existing default by Lessee in the payment of any rent or
other sum of money hereunder, and whether or not there is any other existing default by
either party hereto with respect to which a notice of default has been served, and, if
there is any such default, specifying the nature and extent thereof; and (d) whether or
not there are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing such
certificate.
SECTION 20. WAIVER. No waiver by either party hereto of any breach by the other
of any term, covenant, condition or agreement herein and no failure by any party to
exercise any right or remedy in respect of any breach hereunder, shall constitute a
waiver or relinquishment for the future of any such term, covenant, condition or
agreement or of any subsequent breach of any such term, covenant, condition or
agreement, nor bar any right or remedy of the other party in respect of any such
subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor,
operate as a waiver of the rights of Lessor to enforce the payment of any other rent then
or thereafter in default, or to terminate this Lease, or to recover the Demised Premises,
or to invoke any other appropriate remedy which Lessor may select as herein or by law
provided.
SECTION 21. SURRENDER. Lessee shall, on the last day of the term of this Lease
or upon any termination of this Lease, surrender and deliver up the Demised Premises,
with the Improvements then located thereon into the possession and use of Lessor,
without fraud or delay and in good order, condition and repair, reasonable wear and tear
excepted, free and clear of all lettings and occupancies, free and clear of all liens and
encumbrances other than those existing on the date of this Lease and those, if any,
created by Lessor, without (except as otherwise provided herein) any payment or
allowance whatever by Lessor on account of or for any buildings and Improvements
erected or maintained on the Demised Premises at the time of the surrender, or for the
contents thereof or appurtenances thereto. Lessee's Trade Fixtures, personal property
and other belongings of Lessee or of any sublessee or other occupant of space in the
Demised Premises shall be and remain the property of Lessee, and Lessee shall within
thirty days after the expiration of the Term of this Lease remove the same, and in the
event Lessee shall fail to do so, Lessor may cause the Trade Fixtures to be removed
and Lessee agrees pay Lessor for the costs of removal within thirty (30) days of receipt
of a statement therefore from Lessor..
12
SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the term of this Lease,
identifying the Demised Premises, and also including such other clauses therein as
either party may desire, except the amounts of Basic Rent payable hereunder.
SECTION 23. NOTICES.
23.1. All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be
deemed to have been fully given or made or sent when made in writing and deposited in
the United States mail, registered and postage prepaid, and by facsimile addressed as
follows:
TO LESSOR:
TO LESSEE:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13 Street
Dubuque IA 42001
Fax 319 589 -4149
American Builders & Contractors
Supply Co., Inc.
Attn: Real Estate Leasing Manager
One ABC Parkway
Beloit, WI 53511
Fax: (608) 363 -0416
23.2. The address and /or fax number to which any notice, demand or other writing may
be given or made or sent to any party as above provided may be changed by written
notice given by the party as above provided.
SECTION 24. MISCELLANEOUS. 1
24.1. Time of the Essence. Time is of the essence of this Lease and all of its
provisions.
24.2. Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
24.4. Modification of Agreement. Any modification of this Lease or additional
obligation assumed by either party in connection with this Lease shall be binding only if
13
evidenced in a writing signed by each party or an authorized representative of each
party.
24.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of
and shall apply to the respective successors and assigns of Lessor and Lessee. All
references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include
successors and assigns of Lessor or Lessee without specific mention of such
successors or assigns.
24.6. Force Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively Force
Majeure), then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period equivalent
to the period of such delay.
24.7 Landlord's Lien Waiver. Landlord waives all rights which Landlord now or
hereafter may have, under the laws of the State of Iowa to levy or distrain upon or to
claim or assert any lien, right, claim or title to, any of the personal property of Tenant
which now or hereafter may be located on the Premises, in order to enforce any
obligation of Tenant, including, without limitation, the obligation to pay rent and any
other monetary obligation arising hereunder. Provided however this provision should
not prohibit Landlord from exercising the remedies described herein. Landlord agrees
to execute the Landlord's Waiver and Consent, the form of which is attached as Exhibit
B.
14
LESSOR:
CITY OF DUBUQUE, IOWA
�/ � L
By: V
Roy D. ruol, Mayor
Attest:
Kevin/S. Firnstahl, Acting City Clerk
LESSEE:
AMERICAN BUILDERS &
CONTRACTORS SUPPLY CO., INC.
By.
Ke d a A. Story, ad
051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003
15
16
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to do
business in Iowa. All insurers shalt have a rating of A or better in the current A.M.
Best Rating Guide.
2. All Certificates of insurance required hereunder shall provide a thirty (30) day notice
of cancellation to the City of Dubuque, except for a ten (10) day notice for non-
payment, if cancellation is prior to the expiration date.
3. shall furnish a signed Certificate of Insurance to the City of
Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates
shall include comes of the following policy endorsements:
a) Commercial General Liability policy is primary and non - contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shat be considered a material breach of this agreement.
6. shall be required to carry the following minimum
coverage/limits or greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL UABILITY
General Aggregate Limit $2,000,000
Products - Completed Operations Aggregate Limit $1,000,000
Personal and Advertising injury Limit 51,000,000
Each Occurrence Limit 51,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form CG
25 04 03 97 `Designated Location (s) General Aggregate Limit" shall be included.
AN deviations or exclusions from the standard ISO commercial general liability form
CG 0001, or Business Owners form BP 0002, shall be clearly identified.
1 of 2 January 2006
17
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPUERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and /or authorities and
their board members, employees and volunteers shall be named as an additional
insured on General Liability Policies using ISO endorsement CG 20 28 0704
"Additional Insured - Designated Person or Organization," or it's equivalent. -
See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABIUTY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee - Disease $100,000
Policy Limit - Disease $500,000
c) UMBRELLA E)4CESS LIABILITY
LIQUOR OR DRAM SHOP LIABI
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
❑ Certificate of Liability Insurance (2 pages)
❑ Designated Location(s) General Aggregate Limit CG 25 04 03 87 (2 pages)
❑ Additional Insured.20 26 07 04
❑ Governmental Immunities Endorsement
2 of 2 January 2008
18
THE POUCIE$ Of INSURANCE LISTED BELOW HAVE SEEN ISSUED TO THE INSURED NAMED MOVE FOR THE POLICY PERIOD INDICATED. NOTVATHSTANDING ANY
*EQUIPMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT VAIN RESPECT TO MRSCH THIS CERTIFICATE OR AMY PERTAIN.
THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 1S SUIMECT TO ALL THE TERMS. EXCLUSIONS ANO CONDITIONS OF SUCH POLICES
AGGREGATE LIMITS 8H01•SN MAY HAW SEEN REDUCED BY PAID CLAIMS
S int
two aP MSURANCI
MUM MONO
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INSURERS AFFORDING COVERAGE
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OWNER A Inauranoa Company
,r
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13 1,000,000
50,000
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MID EXP Oft one mewl
$ 5 000
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mum. AoauoAti
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$ 500,000
ENOISOME- POLICYLMR
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91901IPTIONO.
City of Dubuque
0104 "Additional
ma- ooetribating.
imunitiee
wing ISO endorsement tors C0 2026
General Liability policy is primary 6
aggregate licit is included. Aowenental
COMINTIONNOOKNOMMINUMAIXOLOSIONS AMORO w RITOOMMORRIMPROML PROVpgM
is listed as an additional insured on ya0aral Liability policies
Insured - Designated Parson or Organization" or its equivalent.
fora 00 2501 0397 "Designated Locations" general liability
endorsement is included.
ACORD. CERTIFICATE
OF LIABILITY INSURANCE I 12/7/ '
12/7
PMOOU= (563)123 - 4567
Inauranca Agency
Strut Address
City
IT
PAX ( 563)957 - 6543
Zip Coda
TINS CERTIFICATE IS ISSUED AS A MATTER
ONLY AND CONFERS NO
HON.OE CSItTE1CAATE DOE
113 THI CO�YHIA05 A �Y Tji
OF INFORMATION
TIC OR
oQ COIN.
� Mf
INSURERS AFFORDING COVERAGE
NAIC 5
SOURED
Company
Street
City
It
Zip Coda
OWNER A Inauranoa Company
9
mamas
esuman c
eakmas O
SOURER
CERTIFICATE HOLDER
City of Dubuqu.
50 east 13th Street
Dubuque, IA 52001
CANCELLATION
SHOULD ANY OP 114 AIOME OESCORED POLARS SE CANCSLLSO MOM TM
SXPSM110N OAT( TNIMMOP. THE MUM (Neuman 1SLL ENONIMOR TO MAN.
30 GAYS tIa11EN alma 1011E C0011TICATS HOLDS ammo TO am tam VAX
PALM TO 00 SO SHALL MMOM NO OSLISATION OR LMRIJTY OF AIM MO UPON 1115
ONIVIMIL ITS AI MS OR IMPRIMMITMTA .
MINOIMAO IMPIMSmRAtRR
*CORD 25 (!OHMS)
WHIM MINOS AIDS
vow Maims Solunons. Yz (1001327-0645
19
o MORO CORPORATION TITS
Poet t on
AQORD 25 (2M1A%
01$025 wee* Ail`
IMPORTANT
N the certificate holder is an ADDITIONAL MISURED. the poicy(ies) must be endorsed. A statement on this
certificate does not confer rights to the certificate holder in lieu of such mss).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an
endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such
endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing
insurer(s), aulhoraed representative or producer, and the certificate holder, nor does it affirmatively a negatively
amend, extend or alter the coverage 'lorded by the poicies listed thereon.
X202
20
POLICY NUMBER:
A. For ale sums which the insured becomes legally
obligated to pay as damages caused by 'occur-
rences" under COVERAGE A (SECTION I), and
for all medical expenses caused by accidents
under COVERAGE C (SECTION 1), which can be
attributed only to operations at a single desig-
nated location' shown in the Schedule above:
1. A separate Designated Location General
Aggregate Limit applies to each designated
location ", and that limit is equal to the
amount of the General Aggregate limit
shown in the Declarations.
2. The Designated Location General Aggregate
Umit is the most we veil pay for tie sum of all
damages under COVERAGE A, except darn -
ages because of "bodily injury" or "property
damage" lnduded in the "products - completed
operations hazard', and for medical expenses
under COVERAGE C regardless of the num-
ber of:
a. Insureds;
b. Claims made or "suits' brought; or
c. Persons or organizations making claims or
bringing `suits ".
3. My payments made under COVERAGE A for
damages or under COVERAGE C for medical
expenses shall reduce the Designated Loca-
tion General Aggregate Limit for that desig-
nated location ". Such payments shale not re-
duce the General Aggregate Umit shown in
DESIGNATED LOCATION (S)
GENERAL AGGREGATE LIMIT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
21
COMMERCIAL GENERAL LIABILITY
CO 25 04 0397
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Designated Location(s):
(If no entry appears above, information required to complete this endorsement will be shown in the Declaration
as applicable to this endorsement.)
the Declarations nor shall they reduce any
other Designated Location General Aggre-
gate Limit for any other designated location'
shown in the Schedule above.
4. The limits shown M the Declarations for Each
Occurrence. Fire Damage and Medical Ex-
pense continue to apply. However, instead of
being subject to the General Aggregate Limit
shown in the Declarations, such limits wile be
subject to the applicable Designated Location
General Aggregate Limit.
B. For ail suns which the insured becomes legally
obligated to pay as damages caused by 'occur-
rences` under COVERAGE A (SECTION 1), and
for all medical expenses caused by accidents
under COVERAGE C (SECTION 1), which can-
not be attributed only to operations at a single
designated 'location" shown In the Schedule
above:
1. Any payments made under COVERAGE A her
damages or under COVERAGE C for medical
expenses shall reduce the amount available
under the General Aggregate Limit or the
Products - Completed Operations Aggregate
Limit, whichever is applicable; and
2. Such payments shall not reduce any Desig-
nated Location General Aggregate Limit.
CO 25 04 03 97 Pape 1 of 2
CG25040397
C. When coverage for liability arising out of the
'products- completed operations hazard' is pro-
vided, any payments for damages because of
"bodily injury" or `property damage" included in
the operations hazard will
reduce the Operations Ag-
gregate limit, and not reduce the General Ag-
gregate Limit nor the Designated Location Gen-
eral Aggregate Limit.
0. For the purposes of this endorsement, the Defi-
nitions Section is amended by the addition of
the following definition:
Page 2of2
Copyright, Insurance Services Office, Inc., 1996
22
'Location' means premises involving the same or
connecting lots, or premises whose connection is
lnterrupted only by a street, roadway, waterway
or right - of-way of a railroad.
E. The provisions of Limits Of insurance (SECTION
I11) not otherwise modified by this endorsement
shall continue to apply as stipulated.
CG 25 04 03 97
COMMERCIAL GENERAL UABIUTY
CG 20 26 0704
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL. LIABILITY COVERAGE PART
SCHEDULE
POLICY NUMBER:
Name Of Additional Insured Person(s) Or Ornanizatlonfs)
The City of Dubuque, including all its elected and appointed officials,
all its employees and volunteers, all its boards, commissions and/or
authorities and their board members, employees and volunteers.
Information required b complete 'his Schedule. if not shown above, will be shown in the Declarations.
Section N — Who Is An Insured is amended to in-
clude as an additional insured the person(s) or or-
ganization(s) shown in the Schedule, but only with
respect to liability for "bodily injury'. "property dam
age" or "personal and advertising injury" caused, in
whole or M par, by your acts or omissions or the acts
or omissions of those acting on your behalf:
A. In the performance of your ongoing operations: or
B. In connection with your premises owned by or
rented to you
AN terms and conditions of this policy apply unless modified by this endorsement.
CO 20 26 07 06 Includes copyrighted materiel of Insurance Services Office, Inc. with permission. Page 1 of 1
Cs ISO Properties, Inc.. 2004
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CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and
states that the purchase of this policy and the including of the City of Dubuque, Iowa
as an Additional Insured does not waive any of the defenses of govemmental
immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4
as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance
shaft cover only those claims not subject to the defense of governmental immunity
under the Code of Iowa Section 670.4 as it now exists and as it may be amended
from time to time. Those claims not subject to Code of Iowa Section 670.4 shaft be
covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible
for asserting any defense of govemmental immunity, and may do so at any time and
shall do so upon the timely written request of the insurance carrier.
4. Non- Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the Insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this poky for reasons of govemmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Chanae in Policy, The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
SPECIMEN
1 of 1 January 2008
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THIS LANDLORD'S WAIVER AND CONSENT (this "Waiver and Consent ") is made and entered into between
Secured Party (as defined below) and CITY OF DUBUQUE ("Owner"), and affects certain premises owned by Owner and
leased to AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. ( "Customer"), which premises are identified in
Exhibit 1 attached hereto (collectively, the "Premises ").
BANK OF AMERICA, N.A. (together with its successors and assigns, in such capacity the "Secured Party ") is
administrative agent for the lenders from time to time (the "Lenders ") party to a Loan, Security and Guaranty Agreement,
dated as of June 30, 2010 (as modified, renewed, supplemented, restated or amended from time to time, collectively the
"Loan Agreement ") by and among Secured Party, the Lenders party thereto, Customer and the other Obligors party thereto.
As collateral for obligations relating to the Loan Agreement, Customer has granted to Secured Party for its own
benefit and the ratable benefit of the Lenders, a security interest in and lien upon certain assets of Customer, including,
without limitation, all of Customer's cash, cash equivalents, goods, inventory, accounts receivable, equipment, furniture and
trade fixtures (such as equipment bolted to floors), together with all additions, substitutions, replacements, improvements and
proceeds thereof, but excluding real property and real property fixtures (including but not limited to plumbing, lighting and
HVAC systems) (hereinafter referred to collectively, as "Collateral "). Certain Collateral is or shall be located on and may be
affixed to the Premises and Secured Party requires this Lien Waiver under the Loan Agreement.
Secured Party and Owner agree that:
EXHIBIT B
LANDLORD'S WAIVER AND CONSENT
1. Notwithstanding any provisions of any lease between Owner and Customer pertaining to the Premises, this
Waiver and Consent shall govern the rights between them pertaining to the Collateral.
2. The Collateral (a) shall be and remain personal property, notwithstanding the manner of their annexation to
the Premises, their adaptability to the uses and purposes for which the Premises are used and the intention of the party
making the annexation; and (b) shall not become fixtures.
3. OWNER WAIVES EACH AND EVERY RIGHT WHICH OWNER NOW HAS, OR MAY HEREAFTER HAVE,
UNDER THE LAWS OF THE UNITED STATES OF AMERICA AND OF EACH STATE IN WHICH THE PREMISES ARE
LOCATED, OR BY VIRTUE OF ANY LEASE NOW IN EFFECT OR CUSTOMER'S OCCUPATION OF THE PREMISES, TO
LEVY OR DISTRAIN UPON THE COLLATERAL FOR RENT OR ANY OTHER MONETARY OBLIGATIONS, IN ARREARS,
IN ADVANCE, OR BOTH OR TO CLAIM OR ASSERT ANY CLAIM, RIGHT OR TITLE TO, INTEREST IN OR LIEN UPON
THE COLLATERAL. Owner recognizes and acknowledges that Secured Party's security interests in the Collateral are
superior to any lien, right or claim of any nature that Owner may have or assert with respect to any Collateral by law, any lease
or agreement, or otherwise. Notwithstanding anything to the contrary in this Waiver and Consent, Owner does not waive,
relinquish or subordinate any liens, rights or remedies that Owner may now have, or shall ever enjoy, as a judgment creditor.
4. Owner acknowledges that each lease for the Premises is in full force and effect. Owner further acknowledges
that it knows of no default at this time in the Customer's obligation to Owner with regards to the lease for the Premises.
5. Owner will use commercially reasonable efforts to provide Secured Party with written notice of any default by
Customer under the lease resulting in termination of the lease (a "Default Notice "). Secured Party shall have at least fifteen
(15) days following receipt of such Default Notice to cure such default, but neither Secured Party nor any Lender shall be
under any obligation to cure any default by Owner under the lease. No action by Secured Party or any Lender pursuant to this
Waiver and Consent shall be deemed to be an assumption by Secured Party or the Lenders of any obligation under the lease,
and, except as provided in paragraphs 7 and 8 below, Secured Party shall not have any obligation to Owner.
6. Prior to a termination of the lease, Secured Party, or its representatives or invitees may, in accordance with
the terms of the Loan Agreement enter upon the Premises at any time without any interference by Owner to inspect or remove
any or all of the Collateral, including, without limitation, by public auction or private sale pursuant to the provisions of
paragraph 8 below.
7. Owner consents to the installation of the Collateral on the Premises, and grants Secured Party a license for a
period (the "Disposition Period ") of up to ninety (90) days, following receipt by Secured Party of a Default Notice or, if the
lease has expired by its own terms (absent a default thereunder), up to thirty (30) days following receipt by Secured Party of
written notice of such expiration, to enter into possession of the Premises to do any or all of the following to said Collateral:
assemble, appraise, display, operate, sever, remove, maintain, prepare for sale or lease, repair, lease, transfer and /or sell at
25
public auction(s) or private sale(s) the Collateral, or any part thereof. During any Disposition Period in which Secured Party is
in possession of the Premises, Secured Party shall pay Owner, periodically, a daily license fee equivalent to one - thirtieth
(1 /30th) of the minimum monthly rental provided for in the lease agreement between Owner and Customer; provided that such
amounts paid to Owner by Secured Party shall exclude any past -due rental, indemnity payments or similar amounts for
which the Owner remains liable under the lease for default, holdover status or other similar charges. Any extension of the
foregoing period shall only be with the written consent of Owner and at the same rate. All damage to the Premises caused by
the conduct of such auction or sale and any removal of the Collateral (ordinary wear and tear excluded) shall be repaired by
Secured Party at its expense. Neither Secured Party nor any Lender shall be liable for any diminution in value of the
Premises caused by the absence of Collateral removed, and neither Secured Party nor any Lender shall have any duty or
obligation to remove or dispose of any Collateral or any other property left on the Premises by Customer. With respect to any
Collateral remaining on the Premises more than ten (10) days after the Disposition Period, Owner, at its sole election,
may either deem such Collateral abandoned by Secured Party and Customer, or Owner may move, remove, and /or store
the Collateral at the sole cost of Customer.
8. During any Disposition Period, (a) Secured Party and its representatives and invitees may inspect,
repossess, remove and otherwise deal with the Collateral, and Secured Party may advertise and conduct public auctions or
private sales of the Collateral at the Premises, in each case without interference by Owner or liability of Secured Party to
Owner or liability of any Lender to Owner, and (b) Secured Party shall make the Premises available for inspection by Owner
and prospective tenants and shall cooperate in Owner's reasonable efforts to re -lease the Premises. If Secured Party
conducts a public auction or private sale of the Collateral at the Premises, Secured Party shall use reasonable efforts to notify
Owner first and to hold such auction or sale in a manner which would not unduly disrupt Owner's or any other tenant's use of
the Premises.
9. All notices hereunder shall be in writing, sent by certified mail, return receipt requested or by telecopy, to the
respective parties and the addresses set forth in the Lease or at such other address as the receiving party shall designate in
writing.
10. If any order or injunction is issued or stay granted which prohibits Secured Party from exercising any of its
rights hereunder, then, at the option of Secured Party, the Disposition Period shall be stayed during the period of such
prohibition and shall continue thereafter for the number of days remaining in the Disposition Period.
11. The waivers and consents herein granted shall continue until Owner shall have received Secured Party's
written certification that all obligations of Customer to Secured Party in the Loan Agreement have been paid in full and /or fully
performed.
12. Secured Party may amend, modify and extend any indebtedness of Customer to Secured Party or any of the
terms and conditions of the Loan Agreement and related instruments and agreements, without the consent of the Owner and
without giving notice thereof to Owner.
13. THIS WAIVER AND CONSENT SHALL BE INTERPRETED UNDER THE LAWS OF THE STATE OF NEW
YORK and shall inure to the benefit of and be binding upon the successors, heirs, and assigns of Owner, Secured Party and
the Lenders.
[Signatures continue on following page]
26
IN WITNESS WHEREOF, the parties hereto have executed this Waiver and Consent by their duly authorized
officers as of the day and year written below.
Dated this day of , 20_.
CONSENTED TO:
CUSTOMER:
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC.
By:
Name:
Title:
SECURED PARTY:
BANK OF AMERICA, N.A.
By:
Name:
Title:
OWNER:
CITY OF DUBUQUE
By:
Name:
Title:
27
List of Premises: 10 South Main St., Dubuque IA 52003
Exhibit 1 to Landlord's Waiver and Consent