LEASE
EXHIBIT
10.03
Pittsfield
0000
Xxxx
Xxxxxx
This
lease, dated as of September 10, 2007, (“Lease”) is by and between S&A
Realty, Inc., a Massachusetts corporation (“Landlord”)
and S&A Purchasing Corp., a New York corporation
(“Tenant”).
TERMS
For
good
and valuable consideration received by each party from the other, the parties
covenant and agree as follows:
1.
PREMISES
(a) Landlord’s
Authority. Landlord represents and warrants that it is the sole owner
of the land, buildings and equipment described on Schedule A attached hereto,
together with all buildings, improvements, facilities and fixtures located
on
the land, and any easements, rights of access and other property rights
necessary to allow Tenant unobstructed use and occupancy of the foregoing (the
“Premises”). Landlord represents and warrants that it has full right
and authority to lease the Premises to Tenant and to otherwise enter into this
Lease on the terms and conditions set forth herein, and that the provisions
of
this Lease do not conflict with or violate the provisions of existing agreements
between the Landlord and third parties.
(b) Lease
of Premises. Landlord hereby leases the Premises to Tenant, and
Tenant hereby leases the Premises from Landlord. The Premises are
leased to Tenant together with all singular appurtenances, rights and privileges
in or otherwise pertaining thereto.
(c) Landlord’s
Access. Landlord and its authorized agents or representatives shall
have reasonable access to the Premises during Tenant’s normal business hours on
not less than four hours notice to Tenant. In the event of any
emergency giving rise to the threat of damage or injury to life or property,
Landlord may enter the Premises without notice.
2. TERM
(a) Lease
Commencement. The term of this Lease shall commence on
September 10, 2007 (the “Commencement Date”), or the date possession of the
Premises is delivered to Tenant in accordance with this Lease or any riders
attached hereto.
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(b) Initial
Term. The initial term of this Lease (the “Initial Term”) shall be 5
years, commencing on the Commencement Date. Hereinafter, “Term”
shall mean the Initial Term and any extension thereof.
(c) Extension
Term. Tenant shall have the option to extend the term of this Lease
for 3 periods of 5 years each (each such period defined as a “Renewal Period”),
on the same terms and conditions (except for Annual Fixed
Rental, which shall be subject to adjustment as provided on Schedule
“B” annexed hereto) as herein contained. Tenant may exercise each of the 5 year
option periods by giving written notice to Landlord not less than 180 days
prior
to the expiration date of the Initial Term or the Renewal Term, as the case
may
be.
3. RENT
(a) Rent.
Tenant shall pay Landlord the Annual Fixed Rental as set forth on Schedule
B
annexed hereto, in equal monthly installments, on the first day of each and
every calendar month, beginning October 1, 2007, until the expiration of the
term of this Lease and any Renewal Term. The Annual Fixed Rental plus any
additional rent due under this lease is hereinafter sometimes referred to as
“Rent”. Rent for partial months at the beginning and end of the Term
shall be apportioned based on the number of days in such partial
months.
(b) The
initial payment of rent shall be made by Tenant on the date of possession of
the
Premises anticipated to be on or about September 10, 2007. Said
payment shall be for a prorated share of the monthly amount described
herein.
(c) Late
Rent. The Annual Fixed Rental payments are due on the first day of
the month and shall be considered late if received after the tenth day of the
month. In the event that Tenant fails to make the Annual Fixed Rental
payment on or before the fifteenth day of the month, Tenant shall pay a late
charge in the amount of 5% of the amount due.
4. TAXES
AND ASSESSMENTS
(a) Payment
of Taxes by Tenant. As additional rent, Tenant shall pay all real
estate taxes, personal property taxes, transaction, privilege, excise or sales
taxes, special improvement and other assessments (ordinary and extraordinary),
and all other taxes, duties, charges, fees and payments imposed by any
governmental or public authority which shall be imposed, assessed or levied
upon, or arising in connection with the ownership, use, occupancy or possession
of the Premises or any part thereof during the Term (all of which are herein
called “Taxes”). Tenant shall deliver to Landlord evidence of timely
payment of Taxes. Taxes for the tax year in which the term shall
commence or expire shall be apportioned according to the number of days during
which each party shall be in possession during such tax year.
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(b) Tax
Protest. Tenant may contest any Taxes by appropriate proceedings
conducted at Tenant’s expense in Tenant’s name or, if required by law, in
Landlord’s name. Landlord shall cooperate with Tenant and execute any
documents or pleadings reasonably required for such purpose, but Landlord shall
not be obligated to incur any expense or liability in connection with such
contest. Tenant may defer payment of the contested Taxes pending the
outcome of such contest, if such deferment does not subject Landlord’s interest
in the Premises to forfeiture. Tenant shall deposit with Landlord, if
Landlord so requests, an amount of money at least equal to the payment so
deferred plus estimated penalties and interest. Upon notice to
Tenant, Landlord may pay such contested Taxes from such deposit if necessary
to
protect Landlord’s interest in the Premises from immediate sale or
loss. When all contested Taxes have been paid or canceled, all moneys
so deposited to secure the same and not applied to the payment thereof shall
be
repaid to Tenant without interest. In lieu of any such deposit, at
its election Tenant may furnish a bond in a form, in an amount, and with a
surety reasonably satisfactory to Landlord. All refunds of Taxes
shall be the property of Tenant to the extent they are refunds of or on account
of payments made by Tenant.
5. SERVICES
AND UTILITIES
(a) Contractual
Arrangements. Tenant shall make arrangements for delivery to the
Premises of any gas, electrical power, water, sewer, telephone and other utility
services and any cleaning, trash and snow removal and maintenance services
as
Tenant deems necessary or desirable for its operations during the
Term. Landlord represents that the foregoing services and utilities
are installed or readily available at the Premises without any material
installation costs to Tenant.
(b) Payment
of Charges. Tenant shall promptly pay all charges for utility and
other services contracted by Tenant to be delivered to or used upon the Premises
during the Term and shall be responsible for providing such security deposits,
bonds or assurances as may be necessary to procure such services.
(c) Transition. Landlord
and Tenant shall each reasonably assist the other in transition of payments
for,
and control of, services and utilities at the commencement and termination
of
this Lease.
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6. MAINTENANCE
AND REPAIR
(a) Present
Condition. Prior to the commencement of the Term, Landlord
shall put the building systems, including, without limitation, plumbing and
electrical lines and equipment, heating, ventilation and air conditioning
systems, boilers, and elevators, if any, in good repair and
condition. Landlord represents, warrants and covenants that at the
Commencement Date such systems will be in good mechanical and operating
condition. Subject to the preceding sentences of this paragraph,
Tenant accepts the Premises in their present condition. Landlord
represents and warrants that it has no knowledge of any conditions which have
existed or presently exist which could materially adversely affect Tenant’s
business or contemplated use of the Premises.
(b) Maintenance
Obligations. After the commencement of the Term, Tenant shall
promptly make or cause to be made all non-structural and mechanical repairs
needed to maintain the Premises in its present condition, subject to reasonable
wear and tear. Landlord shall promptly make or cause to be made all
structural and mechanical repairs and replacements necessary to so maintain
the
Premises, which shall include keeping the roof and Premises free of leaks,
repairs to the plumbing and drainage systems, electrical systems, and the
exterior and interior structural elements of the building (including, without
limitation, the roof, exterior and bearing walls of the building, support beams,
foundations, columns and lateral supports).
7. USE;
COMPLIANCE WITH LAWS
(a) Permitted
Uses. Tenant may use and occupy the Premises for all lawful uses or
purposes.
(b) Compliance
with Laws. Landlord represents and warrants that Tenant’s intended
use of the Premises for heating and plumbing supply business and an electrical
wholesale business, and for offices and other related uses in connection with
Tenant’s distribution business is a lawful use of the Premises, and that no
further governmental consents, approvals or permits are necessary for such
use. Landlord further represents and warrants that the Premises are
in compliance with all applicable laws, including the Americans With
Disabilities Act. If the foregoing representations are untrue, then,
in addition to all of Tenant’s other rights hereunder or at law or in equity,
Landlord shall reimburse Tenant for, and shall indemnify and hold Tenant and
any
Tenant Indemnitees harmless from and against, any and all damages, injuries,
fines, losses or claims, and all costs and expenses, including reasonable
attorneys fees, incurred by or asserted against Tenant as a result of or arising
out of such representation being untrue, including any costs or expenses
associated with obtaining any necessary consents, approvals or
permits.
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8. ALTERATIONS
Tenant
may, without obtaining Landlord’s prior consent or approval, make temporary
alterations, improvements and additions (“Alterations”) to the Premises that do
not permanently affect the Premises. Tenant may make other
non-temporary Alterations to the Premises (by way of example but not limitation,
the installation of drywall partitioning, doorways, and lifts) with Landlord’s
prior consent or approval, which consent or approval shall not be unreasonably
withheld, conditioned or denied; notwithstanding the foregoing, if the cost
of
such non-temporary Alterations is less than $20,000, Landlord’s prior consent
shall not be required. All Alterations made by Tenant shall be made
at Tenant’s sole cost and expense, including all costs and expenses incurred in
obtaining any required governmental consents, permits or
approvals. Tenant may perform all Alterations with contractors and
subcontractors of Tenant’s own choosing. Landlord will cooperate with
Tenant’s efforts to obtain any governmental permits or approvals or consents
required therefor. Landlord shall not be entitled to impose upon Tenant any
charges or fees of any kind in connection with any Alterations.
9. SIGNAGE
Tenant,
at its expense and subject to its obtaining any required governmental permits
and approvals, may place, maintain, repair and replace signage on the Premises,
which may include any such trade name(s) or corporate affiliations as Tenant
chooses. Landlord shall cooperate with Tenant’s efforts to obtain any
permit, approval or consent necessary or desirable in connection with the
installation of any sign.
10. TENANT’S
PROPERTY
For
purposes of this Lease, the Term “Tenant’s Property” shall mean all office
furniture and equipment, movable partitions, communications equipment,
inventory, and other articles of movable personal property owned or leased
by
Tenant and located in the Premises. All Tenant’s Property shall be
and remain the property of Tenant throughout the Term of this Lease and may
be
removed by Tenant at any time during the Term. Upon the expiration of
this Lease, or within 30 days after the sooner termination hereof, Tenant shall
remove all Tenant’s Property from the Premises without leaving any noticeable
damage to the Premises. If Tenant leaves noticeable damage as a
result of Tenant’s removal of Tenant’s Property, Landlord shall give Tenant 15
days written notice to remove or repair such damage, after which time, Landlord
may repair such damage and Tenant shall reimburse Landlord for all costs and
expenses reasonably incurred by Landlord in repairing such
damage.
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11. QUIET
ENJOYMENT
Landlord
covenants that Tenant shall and may, at all times during the Term, peaceably
and
quietly have, hold, occupy, and enjoy the Premises.
12. LIENS
AND MORTGAGES
(a)
Tenant’s Liens. Tenant shall not (i) by any failure to act or by any
act, other than the mere hiring of a material or service provider, allow any
materialman’s or mechanic’s liens, or (ii) by any act or failure to act allow
any other liens, deeds of trust, mortgages, or other encumbrances, to be placed
on the whole or any portion of the Premises during the term of this
Lease.
(b) Non-Disturbance.
Landlord may place or leave in place a mortgage on the Premises, but only if
Landlord shall have obtained from its mortgagee a written agreement with Tenant,
in form and substance satisfactory to Tenant’s legal counsel, which
agreement (including any extensions, modifications, renewals, consolidations,
and replacements thereof) shall be binding on their respective successors and
assigns and which provides that so long as Tenant shall not be in default in
payment of Rent: (a) Tenant shall not be joined as a defendant in any proceeding
which may be instituted to foreclose or enforce the mortgage; (b) Tenant’s
possession and use of the premises in accordance with the provisions of this
Lease shall not be affected or disturbed by reason of the subordination of
this
Lease to, or any modification of or default, under the mortgage; and (c) the
mortgagee will subordinate and subject its respective rights, if any, to any
portion of the insurance proceeds otherwise payable to Landlord when and to
the
extent necessary for Landlord to comply with its obligations of repair and
restoration hereunder.
13. INSURANCE
(a) Building
Insurance. Throughout the Term, Landlord shall keep the buildings and
improvements included in the Premises insured for the “full replacement value”
thereof against loss or damage by perils customarily included under standard
“all-risk” policies.
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(b) Tenant’s
Liability Insurance. Throughout the Term, Tenant shall maintain commercial
general liability insurance, including a contractual liability endorsement,
and
personal injury liability coverage in respect of the Premises and the conduct
or
operation of business therein, with Landlord as an additional insured, with
limits of not less than $3,000,000 combined single limit for bodily injury
and
property damage liability in any one occurrence. Each such policy of
insurance shall provide that the same will not be canceled without at least
30
days prior written notice to Landlord. On written request by Landlord, Tenant
shall deliver to Landlord certificates of insurance, showing that the insurance
required to be maintained pursuant to the foregoing provisions of this Section
13(b) is in force and will not be modified or canceled without 30 days prior
written notice being furnished to Landlord. Thereafter, not less than 30 days
prior to the expiration or termination of each such policy, Tenant shall furnish
to Landlord certificates showing renewal of, or substitution for, policies
which
expire or are terminated. The insurance to be maintained by Tenant
pursuant to this Section 13(b) may be effected either by blanket or umbrella
policies.
(c) Waiver
of Subrogation. A party shall have no claim against the other or the
employees, officers, directors, managers, agents, shareholders, partners or
other owners of the other for any loss, damage or injury which is covered by
insurance carried by such party and for which recovery from such insurer is
made, notwithstanding the negligence of either party in causing the
loss. The foregoing waiver and release shall not apply, however, to
any damage caused by intentionally wrongful actions or omissions. Each party
represents that its current insurance policies allow such
waiver. Neither Landlord nor Tenant shall obtain or accept any
insurance policy which would be invalidated by or which would conflict with
this
paragraph.
14. INDEMNIFICATION
Except
as
may otherwise be provided in this Lease, Tenant shall indemnify and hold
harmless Landlord, its employees, officers, directors, managers, agents,
shareholders, partners or other owners from and against any and all third-party
claims arising from or in connection with: (i) the conduct or management of
the
Premises or of any business thereon, or any condition created in or about the
Premises during the term of this Lease, unless created by Landlord or any person
or entity acting at the instance of Landlord; (ii) any act, omission or
negligence of Tenant or any of its subtenants or licensees or its or their
employees, officers, directors, managers, agents, shareholders, partners or
other owners, invitees or contractors; (iii) any accident or injury or damage
whatever, not caused by Landlord or any person or entity acting at the instance
of the Landlord occurring in, at or upon the Premises. Tenant shall
have the right to assume the defense of any such third-party claim with counsel
chosen by Tenant or by Tenant’s insurance company. Tenant shall not
be responsible for the fees of any separate counsel employed by the
Landlord.
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15. OPTIONS
TO PURCHASE
Right
of
First Refusal. Should Landlord during the Term enter into an
agreement to sell the Premises, or any portion thereof, (“Sales Agreement”)
Landlord shall provide to Tenant a written notice of intent to sell (“Notice”)
with a copy of the Sales Agreement. Tenant shall have and may
exercise an option to acquire the Premises, or the portion thereof subject
to
the Sales Agreement, on the same terms and conditions, other than as to the
identity of the purchaser and date for closing, as are set forth in the Sales
Agreement. If Tenant does not within 30 days after receiving the
Notice and copy of the Sales Agreement give Landlord written notice of Tenant’s
intention to exercise such option, then subject to and as provided by the Sales
Agreement Landlord may sell the Premises or portion thereof covered by the
Sales
Agreement by no later than the 150th day after receipt by Tenant of the Notice
and copy of the Sales Agreement. If Landlord does not timely so sell
the Premises or varies the terms of the Sales Agreement, Landlord shall again
comply with the terms of this Section 15 as if no Notice had ever been
given. If Tenant timely notifies Landlord of its intent to exercise
such option, then at such time as Tenant may specify, but no later than 90
days
following receipt by Landlord of such notice from Tenant, and at such place
within the city or town where the Premises is located as Tenant may specify,
or
such other place and time and Landlord and Tenant may agree, Tenant shall
exercise its option by purchasing, and Landlord shall sell to Tenant, the
Premises or portion thereof subject to the Sales Agreement.
16.
ENVIRONMENTAL MATTERS
(a) Definitions.
“Environment”
means soil, surface waters, groundwater, land, stream sediments, surface or
subsurface strata and ambient air.
“Environmental
Condition” means any condition with respect to the Environment on or off the
Premises, whether or not yet discovered, which could or does result in any
Environmental Damages, including, without limitation, any condition resulting
from the operation of any business that is or was conducted on the Premises
by
Landlord or Landlord’s predecessors, lessees, sublessees or occupants of the
Premises other than Tenant, or on the property of any other property owner
or
operator in the vicinity of the Premises, or which could or does result from
any
activity or operation conducted by any person or entity on or off the
Premises.
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“Environmental
Damages” means all claims, judgments, damages ( including punitive and
consequential damages), losses, penalties, fines, liabilities (including strict
liability), encumbrances, liens, costs and expenses of investigation and defense
of any claim, whether or not such claim is ultimately defeated, and of any
settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, and the costs and expenses of remediation, any of which
are incurred at any time as a result of (i) the existence of an Environmental
Condition on, about or beneath the Premises or migrating to or from the
Premises, (ii) the Release or Threat of Release of Hazardous Substances into
the
Environment from the Premises or (iii) the violation or threatened violation
of
any Environmental Law with respect to the Premises, regardless of whether the
existence of such Hazardous Substances or the violation or threatened violation
of such Environmental Law arose prior to, on or after the Commencement Date,
and
including without limitation:
(i) damages
for personal injury, disease or death or injury to property or the Environment
occurring on or off the Premises, including lost profits, consequential damages,
and the cost of demolition and rebuilding of any improvements;
(ii) diminution
in the value of the Premises, and damages for the loss or of restriction on
the
use of the Premises;
(iii) fees
incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with investigation,
cleanup and remediation, including the preparation of any feasibility studies
or
reports and the performance of any cleanup, remedial, removal, abatement,
containment, closure, restoration or monitoring work; and
(iv) liability
to any person or entity to indemnify such person or entity for costs expended
in
connection with the items referred to in this paragraph.
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“Environmental
Laws” means all laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof) concerning pollution
or protection of the environment, public health and safety, or employee health
and safety, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials, substances or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials, substances or wastes, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. §9601 et. seq. (“CERCLA”); the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. §1801 et. seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et. seq.; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. §1251 et. seq.; The Clean Air
Act, 42 U.S.C. §7404 et. seq., the Occupational Safety and Health Act of 1970,
each as amended, and any comparable law of the state in which the Premises
is
located;
“Hazardous
Substance” means any (i) substance, gas, material or chemical which poses or may
pose a hazard to human health or safety, (ii) toxic substance or hazardous
waste, substance or related material, or any pollutant or contaminant, (iii)
asbestos, urea formaldehyde foam insulation, petroleum and petroleum
by-products, polychlorinated dibenzo-p-dioxins, polychlorinated dibenzofurans
or
polychlorinated biphenyls which, in each case, is now or hereafter subject
to
Environmental Law or (iv) and any other substances defined as "hazardous
wastes", "hazardous substances", "toxic substances", "pollutants",
"contaminants", or other similar designations, or any other material, the
removal, storage or presence of which is regulated or required and/or the
maintenance of which is regulated or penalized by Massachusetts General Laws
Chapter 21E; The Massachusetts Contingency Plan, 310 CMR 40.00 et seq.; the
Resources Conservation Recovery Act, 42 U.S.C. 6901, et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et
seq.;
the Toxic Substances Control Act, 15 U.S.C. 2601, et seq.; the Clean Water
Act,
33 U.S.C. 1251, et seq.; the Safe Drinking Water Act, 42 U.S.C. 300(f)-300(j)
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statutes, as well as any permits or licenses issued under such statutes and
rules or any other local, state or federal agency, authority or governmental
unit.
“Release”
means any spilling, leaking, pumping, pouring, emitting, discharging, injecting,
escaping, leaching, dumping, disposing, or other entering into the Environment
of any Hazardous Substance, whether known or unknown, intentional or
unintentional.
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“Threat
of Release” means a substantial likelihood of a Release which requires action to
prevent or mitigate damage to the Environment which may result from such Release
and which is required under the Environmental laws.
(b) Representations
and Warranties. Landlord represents and warrants to Tenant that,
unless otherwise disclosed on Schedule C:
(i) Landlord
has no material documents in its possession concerning any Environmental
Condition, and Landlord is not aware of any material information relating to
any
Environmental Condition of the Premises.
(iii) During
Landlord’s ownership of the Premises:
(A) Landlord
has not installed any above ground or underground tanks for storage of Hazardous
Substances (“Storage Tanks”) at the Premises, nor were any Storage Tanks located
at the Premises prior to the time Landlord acquired ownership of the
Premises. The Premises do not presently contain and never have
contained and are presently free from any underground tanks or pipes ancillary
to underground or above-ground tanks (collectively "Tanks"), on the Property,
except as disclosed on Schedule C hereto. To the extend there are any
Tanks disclosed on Schedule C, such Tanks shall have been properly removed
or
shall have been legally and property de-commissioned and abandoned and Landlord
shall provide written verification of such proper removal or de-commissioning
and abandonment within 10 days prior to the Commencement Date.
(B) It
has not received any notice of any private, administrative or judicial action,
or notice of any intended private, administrative or judicial action, relating
to the presence or alleged presence of Hazardous Substances in, under or upon
the Premises, or that may have migrated from the Premises and there is no basis
for any such notice or action. There are no pending, or to Landlord’s
knowledge, threatened, actions or proceedings (or notices of potential actions
or proceedings) from any governmental agency or any other entity regarding
any
matter relating to any Environmental Laws.
(C) Landlord
has not notified or been made aware of any notice to any environmental agency
of
a Release at the Premises.
(D) Landlord
has not disposed of any Hazardous Substances at the Premises or sent,
transported, caused the transportation of or disposed of any waste materials
that are not Hazardous Substances, at the Premises.
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(E) Landlord,
during its ownership and operation of the Premises, has disposed of all wastes
it generated from operations conducted at the Premises in compliance with
applicable laws and only at off-Premises facilities reasonably believed by
Landlord to have necessary permits and approvals.
(F) Landlord
has during its ownership and operation of the Premises maintained or kept all
records required by law to be maintained or kept relating to the generation,
storage, treatment, release and/or disposal of Hazardous
Substances.
(G) Landlord
has no knowledge of any Release at the Premises.
(c) Environmental
Indemnities. Landlord shall indemnify and hold harmless Tenant and
any Tenant Indemnitees against any and all Environmental Damages. Tenant shall
indemnify Landlord against any loss, cost, damage, claim or expense to Landlord
arising out of or related to the presence, use, handling, discharge, release
or
disposal of Hazardous Substances on, in, under, to or from the Premises
introduced by Tenant onto the Premises, provided that Landlord shall have the
burden of proving that any such loss, cost, damage, claim or expense arose
on
account of Hazardous Substances introduced by Tenant onto the
Premises.
17. DAMAGE
AND DESTRUCTION
In
case
of damage to or destruction of the Premises or any part thereof by any cause
whatever, if Tenant cannot continue the operation of its business in the same
manner as prior to such damage or destruction, Tenant by a written notice to
Landlord may terminate this Lease unless Landlord, within 20 days following
such
damage or destruction, has agreed to reconstruct the
Premises. Following such damage or destruction and unless and until
the termination of this Lease, this Lease shall remain in full force and effect
and Tenant shall continue the operation of its business at the Premises if
and
to the extent the Tenant determines, in Tenant’s good faith judgment, that it is
reasonably practical to do so. If Landlord agrees to reconstruct the
Premises and Tenant does not terminate the Lease on account of such damage
or
destruction as aforesaid (a) Landlord shall xxxxx and forgive Rent payments
which become due from the time of such damage or destruction through the course
of the reconstruction to reflect the extent to which Tenant does not conduct
its
business operation at the Premises, (b) the lease term shall continue and the
parties shall continue to be bound by this Agreement, and (c) Landlord shall
commence such reconstruction as soon as possible and diligently prosecute such
reconstruction through completion. Notwithstanding the foregoing, if
Tenant does not elect to terminate, Tenant shall have the right to require
Landlord to reconstruct the Premises, in which event the provisions of “(a), (b)
and (c) of the preceding sentence shall apply and the building insurance
proceeds shall be held for such purpose.
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18.
CONDEMNATION
(a) Notice. Landlord
and Tenant shall each notify the other if it becomes aware that there will
or
might occur a taking of any portion of the Premises by condemnation proceedings
or by exercise of any right of eminent domain (each, a “Taking”).
(b) Termination
of Lease. In the event of the Taking of the entire Premises, this
Lease shall terminate as of the date of such Taking. If there occurs
a Taking of a portion of the Premises such that the remainder of the Premises
shall not, in Tenant’s reasonable opinion, be adequate and suitable for the
conduct of Tenant’s business as conducted prior to such Taking, then Tenant may,
at its option, terminate this Lease.
(c) Continuation
of Lease. If there is a Taking of a portion of the Premises and this
Lease is not terminated pursuant to Section 18(b) hereof, then this Lease shall
remain in full force and effect, except that appropriate adjustments shall
be
made to, and in respect of, the Premises and Rent, and Landlord shall proceed
with due diligence to perform any work necessary to restore the remaining
portions of the Premises to the condition that they were in immediately prior
to
the Taking, or as near thereto as possible.
(d) Condemnation
Award. Any award resulting from any Taking of the Premises for the
value of Tenant’s leasehold prior to the Taking, or Tenant’s personal property,
fixtures, relocation costs or loss of goodwill shall be the property of
Tenant. All of any award resulting from any such Taking not
specifically reserved to Tenant shall be the property of Landlord.
19. DEFAULT
BY LANDLORD
Notwithstanding
any other provision of this Lease, if the Landlord by any act or omission in
breach or default of this Lease renders the Premises or any portion thereof
untenantable or unfit for Tenant’s business operations, then (a) if such
untenantability or unfitness continues for a period of five consecutive days
after Tenant notifies Landlord in writing thereof, all Rent shall xxxxx for
the
period that the Premises remain untenantable or unfit to the extent that the
Premises have been rendered untenantable or unfit; and (b) if such
untenantability or unfitness continues for a period of 30 consecutive days
after
Tenant notifies Landlord in writing thereof, Tenant may (i) terminate this
Lease
at any time thereafter by delivering written notice to Landlord thereof, or
(ii)
cure same and deduct the cost from Rent.
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13
-
20. DEFAULT
BY TENANT
It
shall
constitute an Event of Default if Tenant shall fail to perform or comply with
any term of this Lease, including the payment of Rent, and such failure shall
in
the case of a default in the payment of rent continue for a period of 10 days
(30 days for all other defaults) after Tenant’s receipt of written notice
thereof from Landlord specifying such failure and requiring it to be remedied;
provided, however, that if any such failure, other than the failure to pay
Rent,
cannot with due diligence be remedied by Tenant within a period of 30 days,
if
Tenant commences to remedy such failure within such 30 day period and thereafter
prosecutes such remedy with reasonable diligence, the period of time for remedy
of such failure shall be extended so long as Tenant prosecutes such remedy
with
reasonable diligence. Following the occurrence of any Event of Default, Landlord
may terminate this Lease and have immediate possession of the Premises, in
addition to any other remedies allowed by law.
21. SURRENDER;
HOLDOVER
At
the
end of the Term or upon termination of this Lease, whichever first occurs,
Tenant shall quit and surrender possession of the Premises to Landlord vacant
and broom clean. If Tenant remains in possession of the Premises
after the end of the Term, then Tenant shall be deemed to be a tenant from
month
to month only, under all of the same terms and conditions of this Lease then
in
effect, except as to the duration of the Term.
22. BROKERAGE
Landlord
and Tenant each represents and warrants to the other that it had no
conversations or negotiations with any broker or finder concerning the
consummation of this Lease. Landlord and Tenant shall each indemnify and hold
harmless the other from and against any claims for brokerage commissions or
finder’s fees (together all related expenses, including, without limitation,
reasonable attorneys’ fees) resulting from or arising out of any conversations
or negotiations had by it with, or any agreement between it and, any broker
or
finder in connection with this Lease, other than a broker identified
above. In the event there is a broker, Landlord shall pay all
brokerage commissions.
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14
-
23. ASSIGNMENT
AND SUBLETTING
Except
as
set forth herein, Tenant shall not assign this Lease without the Landlord’s
prior written consent, which consent, however, shall not be unreasonably
withheld nor delayed. Notwithstanding the foregoing, Tenant may,
without the Landlord’s consent: (a) sublet not more than 50% of the Premises;
(b) assign or sublet this Lease to any entity or affiliate more than 50% owned
or controlled by Tenant, to any entity which owns or controls more than a 50%
interest in Tenant or to any entity under common control with
Tenant. A merger or consolidation to which Tenant or any successor to
Tenant is party shall not constitute an assignment requiring consent of
Landlord.
24. MISCELLANEOUS
(a) Governing
Law. This Lease shall be governed by and construed in accordance with
the laws of the State in which the Premises is located.
(b) Certain
Definitions.
“Including”
means including without limitation.
“Tenant
Indemnitee” means any corporation, individual or other entity (a) of which
Tenant is a direct or indirect subsidiary of any tier, or that directly or
indirectly controls Tenant, (b) that is a direct or indirect subsidiary of
any
tier of Tenant, or (c) that is under direct or indirect common control with
Tenant.
(c) Indemnification
Matters Involving Third Parties. With respect to the obligation of
either party to indemnify pursuant to this Lease:
|
(1)
|
If
any claim or demand for which an Indemnifying Party would be liable
to an
Indemnified Party is asserted against or sought to be collected from
the
Indemnified Party by a third party, Indemnified Party shall with
reasonable promptness notify in writing the Indemnifying Party of
such
claim or demand stating with reasonable specificity the circumstances
of
the Indemnified Party’s claim for indemnification; provided, however, that
any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying
Party are actually prejudiced. After receipt by the
Indemnifying Party of such notice, then upon reasonable notice from
the
Indemnifying Party to the Indemnified Party, or upon the request
of the
Indemnified Party, the Indemnifying Party shall defend, manage and
conduct
any proceedings, negotiations or communications involving any claimant
whose claim is the subject of the Indemnified Party’s notice to the
Indemnifying Party as set forth above, and shall take all actions
necessary, including, but not limited to, the posting of such bond
or
other security as may be required by any governmental authority,
so as to
enable the claim to be defended against or resolved without expense
or
other action by the Indemnified Party. Upon request of the
Indemnifying Party, the Indemnified Party shall, to the extent it
may
legally do so and to the extent that it is compensated in advance
by the
Indemnifying Party for any costs and expenses thereby
incurred,
|
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15
-
|
(a)
|
take
such action as the Indemnifying Party may reasonably request in connection
with such action,
|
|
(b)
|
allow
the Indemnifying Party to dispute such action in the name of the
Indemnified Party and to conduct a defense to such action on behalf
of the
Indemnified Party, and
|
|
(c)
|
render
to the Indemnifying Party all such assistance as the Indemnifying
Party
may reasonably request in connection with such dispute and
defense.
|
|
(2)
|
In
any action or proceeding, the Indemnified Party shall have the right
to
retain its own counsel, but, in the event the Landlord is the Indemnified
Party, Landlord shall have the right to retain only one counsel on
behalf
of all the Landlord; but the fees and expenses of such counsel shall
be at
its own expense unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel
or (ii)
the named parties to any suit, action or proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of all parties by the same counsel would
be
inappropriate due to actual or potential conflict of interests between
them.
|
|
(3)
|
An
Indemnifying Party shall not be liable under this lease for any settlement
effected without its consent of any claim, litigation or proceeding
in
respect of which indemnity may be sought
hereunder.
|
|
(4)
|
The
Indemnifying Party may settle any claim without the consent of the
Indemnified Party, but only if the sole relief awarded is monetary
damages
that are paid in full by the Indemnifying Party. The Indemnified
Party
shall, subject to its reasonable business needs, use reasonable efforts
to
minimize the indemnification sought from the Indemnifying Party under
this
Agreement.
|
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16
-
(d) Consents
and Approvals. If, pursuant to any provision of this Lease, the
consent or approval of either party is required to be obtained by the other
party, then, unless otherwise provided herein, the party whose consent or
approval is required shall not unreasonably withhold, condition or delay such
consent or approval.
(e) Rights
and Remedies. All rights and remedies of either party expressly set
forth herein are intended to be cumulative and not in limitation of any other
right or remedy set forth herein or otherwise available to such party at law
or
in equity. Notwithstanding the foregoing, in no event shall either
party be liable to the other for consequential or punitive damages, except
as
otherwise provided in this Lease.
(f) No
Waiver. The failure of either party to seek redress for a breach of,
or to insist upon the strict performance of any covenant or condition of this
Lease, shall not prevent a subsequent act which would have originally
constituted a breach from having all the force and effect of an original
breach. The receipt by Landlord of Rent with knowledge of the breach
of any covenant of this Lease by Tenant shall not be deemed a waiver of such
breach and no provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing and signed by Landlord. The
payment by Tenant of Rent with knowledge of the breach of any covenant of this
Lease by Landlord shall not be deemed a waiver of such breach and no provision
of this Lease shall be deemed to have been waived by Tenant unless such waiver
is in writing and signed by Tenant.
(g) Successors
and Assigns. Each and all of the terms and agreements herein
contained shall be binding upon and inure to the benefit of the parties hereto,
and their heirs, legal representatives, successors and assigns. Any
sale or transfer of the Premises by Landlord during the term of this Lease
shall
be made by an instrument that expressly refers to this Lease as a burden upon
the Premises.
(h) Recording. Tenant
may record this Lease, a short form thereof, or a memorandum
thereof. Landlord will cooperate with Tenant in the execution and
delivery of such documents (including a memorandum or short form of this lease
or comparable documents) as may be required to effectuate the foregoing in
accordance with the requirements, customs and practices governing such
recordation.
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17
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(i)
Notices. All notices required hereunder shall be in writing and shall
be effective when delivered to the address set forth below (or to such other
addresses as either party may subsequently designate).
TENANT:
S&A
Purchasing Corp.
c/o
Universal Supply Group, Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Xx.
Xxxxxxx Xxxxxx
LANDLORD:
S&A
Realty, Inc.
x/x
Xxxxx
Xxxx
0
Xxxxxxxx Xxxxxx
Xx.
Xxxxxxxxxx, XX 00000
(j) Entire
Agreement; Modifications. This Lease contains the entire agreement
between the parties concerning the matters set forth herein and may not be
modified orally or in any manner other than by an agreement in writing signed
by
all the parties hereto or their respective successors in
interest. Notwithstanding the foregoing, Tenant’s remedies hereunder
and under the Stock Acquisition Agreement shall be cumulative and not
exclusive.
(k) Joint
and Several Obligations. If Landlord includes more than one person or
entity, the obligations shall be joint and several of all such persons and
entities.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the
day
and year first above written.
LANDLORD:
|
TENANT:
|
||
S&A
REALTY, INC.
|
S&A
PURCHASING CORP.
|
||
By:
|
/s/
Xxxxx Xxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
Xxxxx
Xxxx, President
|
Xxxxxxx
Xxxxxx, President
|
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18
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Pittsfield
0000
Xxxx
Xxxxxx
Schedule
A
DESCRIPTION
OF PREMISES
The
following described land in Berkshire County, State of Massachusetts, commonly
referred to as 0000 Xxxx Xxxxxx, together with all buildings thereon and
appurtenances thereto:
Consisting
of approximately 30,280 square feet located at 0000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, as further described in Schedule A-1 annexed
hereto.
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19
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Pittsfield
0000
Xxxx
Xxxxxx
Schedule
B
ADDITIONAL
PROVISIONS TO LEASE
Annual
Fixed Rent in Initial Term and Renewal Terms
|
1.
|
The
“Annual Fixed Rent” for the first year of the Initial Term shall be the
sum of fifty nine thousand dollars ($59,000) per year, or four thousand
nine hundred sixteen dollars and sixty six cents ($4,916.66) per
month.
|
|
2.
|
Every
year, starting with the second year, the Annual Fixed Rent shall
be
adjusted upward, but never decreased, pursuant to the provisions
hereof.
|
|
3.
|
For
the purposes of this Schedule, the following terms have the following
meanings:
|
“Index”
|
The
Consumer Price Index—All Urban Consumers for New York-Northern New
Jersey-Long Island, NY-NJ-CT-PA—All Items, published by the United States
Bureau of Labor, and any successor thereto (1982 – 1984 =
100)
|
|
“Base
Month”
|
September
2007
|
|
“Comparison
Month”
|
September
2008 and every September thereafter
|
|
4.
|
The
Annual Fixed Rent for the second year of the Initial Term shall be
fifty
nine thousand dollars ($59,000) per year, increased by the percentage
of
increase of the Index of the Comparison Month (September 2008 and
every
September thereafter) over the Base Month (September
2007).
|
Example
Assume
that the Index for September 2008 shows a three percent (3%) increase over
the
Index for September 2007. The Annual Fixed Rent for the second year
is sixty thousand seven hundred seventy dollars ($60,770).
|
5.
|
The
same procedure shall be followed every year throughout the Initial
Term
and the Renewal Terms, with the applicable percentage of increase
to be
multiplied times the Annual Fixed Rent for the year just
concluded.
|
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20
-
|
6.
|
Because
the Index is not published until after the close of a month, the
adjustment in Annual Fixed Rent shall be made when the Comparison
Month’s
Index is published and Landlord presents to Tenant the comparison
figure
and computation of adjustment of Annual Fixed Rent; and any increase
for
months already lapsed since the end of the prior year shall be added
to
the next installment of Annual Fixed
Rent.
|
|
7.
|
In
the event that the Index is discontinued, the parties shall agree
upon an
equivalent and substituted Index to be applied in the same
manner.
|
LANDLORD:
|
TENANT:
|
||
S&A
REALTY, INC.
|
S&A
PURCHASING CORP.
|
||
By:
|
/s/
Xxxxx Xxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
Xxxxx
Xxxx, President
|
Xxxxxxx
Xxxxxx, President
|
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21
-
Pittsfield
0000
Xxxx
Xxxxxx
Schedule
C
Underground
Tanks or Pipes Ancillary to Underground or Above-Ground Tanks
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22
-
This
Agreement, dated September 10, 2007 (the “Agreement”), is entered into by and
among S&A Realty, Inc. (“Landlord” or “S&A Realty”), S&A Purchasing
Corp. (“Tenant” or “S&A”), a New York corporation and Colonial Commercial
Corp. (“Colonial”), a New York corporation and the sole shareholder of
S&A.
Landlord
and Tenant entered into that certain lease agreement dated September 10, 2007
for the premises located at 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the
“Lease Agreement”) in connection with the purchase by S&A of the assets set
forth in that certain Asset Purchase Agreement dated by and among S&A,
S&A Realty and the other signatories thereto.
For
good
and valuable consideration received by each party from the other, the parties
covenant and agree as follows:
In
the
event Tenant fails to perform any of its obligations in accordance with the
terms of the Lease Agreement, Landlord shall provide Tenant written notice
(“Failure Notice”) specifying such failure and requiring such failure be
remedied in accordance with the terms of the Lease
Agreement. Colonial hereby agrees to perform such failed obligation
on behalf of the Tenant in the event Tenant shall have failed to remedy such
failure in accordance with the prior sentence and Landlord provides Colonial
with a written notice specifying the obligation that Tenant failed to cure
along
with a copy of the Failure Notice.
In
the
event Tenant contests any of the matters set forth in a Failure Notice, Tenant
and Landlord shall resolve such dispute exclusively by arbitration by the
American Arbitration Association in Great Barrington, Massachusetts.
Notwithstanding anything set forth in this Agreement, in the event a Failure
Notice is arbitrated in accordance with this subsection, Colonial’s obligations
under this Agreement shall be subject to the finding of Tenant’s failure to
perform by such arbitration.
(REST
OF
PAGE INTENTIONALLY LEFT BLANK)
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23
-
LANDLORD:
|
TENANT:
|
COLONIAL:
|
|||||
S&A
REALTY, INC.
|
S&A
PURCHASING CORP.
|
COLONIAL
COMMERCIAL CORP.
|
|||||
By:
|
/s/
Xxxxx Xxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||
Name:
|
Xxxxx
Xxxx
|
Name:
|
Xxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
Title:
|
President
|
Title:
|
President
|
Title:
|
Chief
Executive Officer
|
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24
-
Pittsfield
0000
Xxxx
Xxxxxx
Lease
Addendum
Number
1
Landlord
and Tenant agree that any environmental hazard, including but not limited to
contamination or hazardous waste, caused by or related to the disclosures in
the
environmental reports dated August 20, 2007 and September 7, 2007, attached
hereto, shall be the sole liability of the Landlord.
LANDLORD:
|
TENANT:
|
COLONIAL:
|
|||||
S&A
REALTY, INC.
|
S&A
PURCHASING CORP.
|
COLONIAL
COMMERCIAL CORP.
|
|||||
By:
|
/s/
Xxxxx Xxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||
Name:
|
Xxxxx
Xxxx
|
Name:
|
Xxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
Title:
|
President
|
Title:
|
President
|
Title:
|
Chief
Executive Officer
|
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25
-
Xxxxxxx
X. Going & Associates, Inc.
ENVIRONMENTAL
SITE INVESTIGATION-REMEDIATION
00
Xxxxxx
Xxxxx
Xxxx
Xxxx, Xxx Xxxx 00000
Tel.
000-000-0000
Fax.
000-000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxx.xxx
August
20, 2007
Xx.
Xxxxxxx Xxxxxx, President
Universal
Supply Group Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
RE:
Summary of Findings for Phase I Environmental Site Assessment
Commercial
Property At 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
Dear
Xx.
Xxxxxx:
At
your
request, Xxxxxxx X. Going & Associates, Inc. is conducting a Phase I ESA of
commercial property situated at 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx.
We
have determined that there are “recognized environmental conditions”
onsite and that there should be some additional investigation in
order to
determine whether or not these conditions have caused any significant
impact to subject property.
Specifically,
historical sources indicate that subject may have been used as a trolley yard.
In addition, documented historical use of subject property includes “paper
manufacturing, research and development” and we have determined that two (2)
aboveground storage tanks (ASTs) were utilized in the manufacturing process.
The
present owner cannot tell us and we have not yet been able to determine if
these
ASTs contain chemicals or chemical residual. We also find that a 10,000 gal.
underground fuel oil storage tank (UST) was removed from subject property in
1989 without any documentation of soil conditions before or after removal.
Furthermore, there are currently three (3) 275 gal. fuel oil ASTs in service
at
the subject (without any means of secondary containment). Also, and finally,
subject is surrounded to the north, south, and west by a hazardous waste site
[“General Electric”] identified by both the Massachusetts Department of
Environmental Protection and the U.S. Environmental Protection Agency, and
considerable soil and groundwater contamination has been
discovered.
These
“recognized environmental conditions” represent significant potential
environmental liability until they have been thoroughly investigated. We
recommend the installation of strategic test pits and soil borings and
subsequent soil and groundwater analysis.
We
will
issue the complete Phase I ESA (with attachments) in about two
weeks.
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26
-
Meanwhile,
if there are any technical questions for us, or if further elaboration is
required, please do not hesitate to contact us at (000) 000-0000.
Thanks
for the opportunity to be of service.
Sincerely,
/s/
Xxxxxxx X. Going
Xxxxxxx
X. Going, Principal
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27
-
Xxxxxxx
X. Going & Associates, Inc.
ENVIRONMENTAL
SITE INVESTIGATION-REMEDIATION
00
Xxxxxx
Xxxxx
Xxxx
Xxxx, Xxx Xxxx 00000
Tel.
000-000-0000
Fax.
000-000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxx.xxx
September
7, 2007
Xx.
Xxxxxxx Xxxxxx, President
Universal
Supply Group Inc.
000
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
E-mail:
xxxxxxx@xxxxxx.xxx
RE: Phase
I Environmental Site Assessment: “S&A Supply Inc.”
0000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
Dear
Xx.
Xxxxxx:
Xxxxxxx
X. Going & Associates, Inc. is pleased to submit this Phase I Environmental
Site Assessment of commercial property situated at 0000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx. This assessment has been conducted pursuant
to
ASTM E1527-05. The objective of this assessment was to identify "recognized
environmental conditions" associated with a range of contaminants within
the scope of Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) and petroleum products. The term "recognized environmental
conditions" means the presence or likely presence of any hazardous
substances or petroleum products on a property under conditions that indicate
an
existing release, a past release, or a material threat of a release into the
structures on the property or into the ground, groundwater, or surfacewater
of
the property. This assessment is not intended to address de
minimus conditions that generally do not represent a material risk of harm
to public health or the environment and generally would not be the subject
of
enforcement action if brought to the attention of appropriate regulatory
agencies.
Included
in this letter report under the heading "Attachment A" are
topographic area map, neighborhood aerial photograph, municipal tax map,
photographs of the property, portion of assessor’s file, historical USGS
topographic area maps (1893, 1947, 1985), Xxxxxxx® Fire Insurance
Maps
(1905, 1941, 1950, 1956), historical aerial photographs (1941, 1952, 1970,
1986,
2006), Envirotech’s “21E Historical Site Assessment for Oil and Hazardous
Materials at 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx” (November 1993),
USEPA’s General Electric Pittsfield Site Map, History and Description (June
2000), a city directory compiled by Environmental FirstSearch™ (August 2007), an
Environmental Questionnaire completed by Xx. Xxxxx Xxxx (August 2007), and
an
environmental database compiled by Environmental FirstSearch™ (August
2007).
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28
-
Phase
I Site Inspection
Subject
property is located at 0000 Xxxx Xxxxxx, Xxxx xx Xxxxxxxxxx,, Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxxx [topographic map, tax map, and photos]. Subject K10-14-2 is 0.777
acre in
size,
irregular in shape, and generally level. Subject is classified as
industrial; more specifically, warehouse for storage of
manufactured products, in the City of Pittsfield Assessment Role. No
portion of subject is federal, state, or tribal land.
Nearby
land use and improvements are residential, commercial and industrial along a
commercial corridor. Adjacent property includes: Consolidated Rail Corporation
R.O.W. and the General Electric Plant to the north, residential and commercial
(Citgo Gas Station, Xxxxx Auto Electrical Service, First Impressions Hair Salon)
to the south, commercial (Canine Clip Shop & Pet Store, Pittsfield
Self-Storage) to the east, and commercial (Xxxxxxx Construction) to the west.
No
"recognized environmental conditions" were obvious on adjacent land
during our field inspection of subject property.
Subject
is improved with one commercial building, which provides retail, showroom,
and storage space for S&A Supply Inc. (plumbing/electrical wholesaler). We
observed outdoor storage of piping, electrical wire, and pipe fittings on
asphalt pavement north and east of the building. A paved driveway provides
access from East Street.
Subject
building is a 1-story brick structure (with three interior levels) over a
partial basement. This building is serviced by municipal water and sewer systems
and electric utilities. The offices and showroom are heated with natural gas
and
the warehouse is heated with fuel oil. The building houses offices, racks of
plumbing and electrical supplies, showroom, and sales counter space for S&A
Supply, and features a dry sprinkler system, a smoke/heat detection system,
and
5 ton and 10 ton overhead cranes.
Solid
waste generated at the site is best characterized as commercial garbage,
including paper, cardboard, and wood packing material, all of which is removed
by the City of Pittsfield. Based upon the age of the building, it is possible
that painted surfaces contain lead-based paint. Painted surfaces were in good
condition.
We
observed three (3) 275 gal. aboveground fuel oil storage tanks (ASTs) in the
northwest corner of the basement on concrete floor; there was no secondary
containment for these ASTs.
We
observed two (2) additional ASTs in the basement, which were reportedly utilized
in the paper manufacturing process. These ASTs were constructed of block and
they were floor to ceiling in height. The present owner cannot tell us and
we
have not yet been able to determine if these ASTs contain chemicals or chemical
residual.
We
observed floor drains in the partial basement and in the warehouse. The owner
reports that the building was historically utilized for paper manufacturing
and
paper research/development, and he asserts that the floor drains are connected
to the municipal sewer.
We
observed small containers of adhesives, cleaners, sealers, and water treatments
packaged for retail sale. There were no noticeable leaks from any of these
containers at the time of our inspection.
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29
-
The
owner
(Xx. Xxxx) reports that there are no underground chemical storage tanks or
drywells or sumps or pits on the property.
Site
History and Other Relevant Information
We
examined the City of Pittsfield Assessor’s records, Pittsfield Building
Department records, Pittsfield Health Department records, Pittsfield
Conservation Department records, historical USGS topographical area maps,
historical Xxxxxxx® Fire Insurance
Maps, historical aerial photographs, historical city directories, USEPA reports,
and a site-specific 21E Historical Site Assessment prepared by ENVIROTECH.
We
interviewed the Acting Building Commissioner (Xxxxxxx Xxxxxxxx), the Fire Chief
(Xxxxx Xxxxxxxx), the Conservation Agent (Xxxxx Xxxxxxxx), the Health Department
Inspector (Xxxxxx Xxxxxxxx), and the owner of S&A Supply and subject
property (Xxxxx Xxxx). This work serves to establish that subject was improved
in 1899. Prior to 1899, subject was apparently an unimproved lot.
Municipal
records establish ownership of subject as follows: Berkshire Street Railroad
Co.
in 1905, Xxxxx Paper Co. in 1946, X.X. Xxxxx & Sons in 1956, Beloit Corp. in
1983, S&A Supply of Pittsfield Inc. in 1983, together with current owner
S&A Realty Inc. in 1984. Municipal records also indicate that subject was
improved with a commercial building in 1899.
The
1893
issue of the USGS area map depict subject and south, east and west adjacent
property as unimproved land and north adjacent property as a Boston & Albany
Railroad track. The 1947 and 1985 issues of the USGS area map depict subject
improved with a structure that appears similar to subject building, north
adjacent property as a Boston & Albany Railroad rail yard, south adjacent
property as residential improvement, and east adjacent property as undeveloped
land.
Xxxxxxx®
Fire Insurance Maps
(1905, 1941, 1950, and 1956) were reviewed. The 1905 map presents subject
property as improved with a structure that appears similar to subject building,
and which is labeled “Berkshire Street Railroad Co. Power Ho (House)”;
north adjacent property as improved with three sets of railroad tracks and
labeled “Boston & Albany RR”; and west adjacent property as improved with a
pair of dwellings. The 1941 map presents subject building labeled “Vacant &
Open”; north adjacent property as largely unchanged; south adjacent property as
a mix of residential and commercial buildings; and west adjacent as vacant.
The
1950 map presents subject building labeled “X. Xx. (Warehouse)”; north
and south adjacent property as largely unchanged; and west adjacent property
as
improved and labeled “Conc (Concrete) Mixer”. The 1950 map features a
“GT (Gas Tank)” symbol on subject property and locates this tank near
the northeast corner of the building. The 1956 map presents subject
building labeled “X.X. Xxxxx & Sons Co., Fabrication Plant, Factory Bldg.”;
north and south property as largely unchanged; and west adjacent property as
improved with a structure labeled “Berkshire Street Railroad Co. Bus
Garage”.
Historic
aerial photos (1941, 1952, 1970, 1986, and 2006) were also carefully reviewed.
All of these aerials depict subject property as improved with a structure that
appears similar to the present building. The 1941 aerial establishes that north
adjacent property was improved with a railroad R.O.W. and a portion of the
General Electric Site; south adjacent property was apparently residential;
east
adjacent was undeveloped; and west adjacent property was improved with a
commercial structure that appears similar to the present building. The 1952
and
1970 aerials indicate that north adjacent property was improved with a railroad
R.O.W. and with additional structures on the General Electric Site; south
adjacent property was residential and commercial; and east and west adjacent
property was commercial. The 1986 aerial presents additional structures on
the
General Electric Site, creating a complex that appears similar to the present
complex; south and west adjacent property were largely unchanged; and east
adjacent was vacant and unimproved. The 2006 aerial indicates that adjacent
property was largely unchanged.
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Historic
site-specific city directories (1906, 1913, 1919, 1925-26, 1929-30, 1933, 1946,
1960, 1963-64, 1967, 1992, 1997, 2002, and 2007) compiled by Environmental
FirstSearch™ were also reviewed. These city directories provide a property
occupant/use list for subject and four addresses “up” and “down” East Street.
The north and west adjacent property was not detailed in these city directories.
Subject was not listed in the 1906-1925 directories [when the neighborhood
was
all listed residential], but was occupied by Berkshire St, RR Power House from
1929-1933, Xxxxx Paper Co. storage and Xxxxx Oil Co. bulk station in 1946,
X.X.
Xxxxx & Sons Co. Fabricating Plant in 1960, and S&A Supply of Pittsfield
Inc. from 1992-2007. East adjacent property (0000 Xxxx Xxxxxx) was reportedly
occupied by Xxxxxx Oil Co. in 1967, Rent-A-Wreck in 1992, Clean Car Auto Sales
in 1997, and Canine Clip Shop in 2007. South adjacent property was occupied
by
numerous commercial businesses, including First Impressions Hair Salon,
Berkshire Moped Sales & Service, Xxxxx Auto Electrical Service, and Hill Oil
Of Mass. Inc. from the 1970s through 2007.
The
Building Commissioner, the Fire Chief, the Conservation Agent, and the Health
Department Inspector all indicated that neither they nor their departments
have
knowledge of any "recognized environmental conditions" associated with
subject property. Building Department files contain reports of building code
inspections, various building permits, and “certificates of occupancy”.
Site-specific building, conservation, and health department files did not
contain any reference to hazardous chemicals or petroleum products.
Site-specific fire department files did not contain any reference to hazardous
chemicals, but did contain a copy of a permit to close/remove a 10,000 gal.
underground fuel oil storage tank (UST) in 1989.
Xx.
Xxxxx
Xxxx informs us that he is not aware of any environmental liens, engineering
controls, or institutional controls associated with the property.
Xx. Xxxx further informs us that S&A Supply has utilized subject since 1983.
Xx. Xxxx asserts that he has no specific knowledge of generation, storage or
disposal of hazardous chemicals, or chemical spills, or obvious indicators
of
contamination, or environmental cleanups at subject property.
Xx.
Xxxx
provided us with a copy of a “21E Historical Site Assessment for Oil and
Hazardous Materials” dated November 1993 and prepared by ENVIROTECH. The scope
of this study included: historical research, file investigations at
Massachusetts Department of Environmental Protection (MADEP) and
City of Pittsfield municipal offices, and results of site reconnaissance and
interviews. In this assessment, ENVIROTECH concluded that no release of oil
or
hazardous materials has occurred on subject property. ENVIROTECH further
concluded that the inspection of subject property and neighborhood revealed
no
additional evidence suggesting a release or threat of release of oil or
hazardous materials at subject property. The complete text of this assessment
is
included in Attachment A; however, the Overview, Conclusions and
Recommendations follow:
21E
Historical
Site Assessment for
Oil
and Hazardous Materials
at
0000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
I. OVERVIEW
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The
subject property is the site of plumbing supply and showroom facility, located
at 0000 Xxxx Xxxxxx xx Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx. The site
was
investigated during October of 1993, to assess the potential for release or
a
threat of release of Oil and hazardous materials (OHM) as defined in
Massachusetts General Law, Chapter 21E and the Massachusetts Contingency Plan
(MCP) 310 CMR 40.327.
An
historical investigation of the property, including record file review at the
Massachusetts Department of Environmental Protection (DEP) and Pittsfield
municipal offices revealed the following information on the site and its
surroundings:
The
site is presently served by the existing municipal drinking water and municipal
sewer systems and is heated by a gas fired hot water system for the offices
and
an oil fired steam heating system for the warehouse areas. An inspection of
the
site and its environs revealed no evidence suggesting that a release of OHM
has
occurred at the subject property. There was also no evidence suggesting the
presence of asbestos or UFI insulation on the premises.
No
underground storage tanks (USTs) exist on the property at the present time.
A
10,000 gallon UST was removed from the property without incident on September
19,1989. This information was confirmed by Xx. Xxxxxx XxXxxxxx of the Pittsfield
Fire Department and Xx. Xxx Xxxx of S&A Supply, Inc. Three (3) above ground
storage tanks are known to exist on the property, 275 gallons each, which
contain fuel oil for the warehouse heating system. A listing of the Underground
Storage Tanks in the area and Emergency Response information is listed in the
site history section of this report.
The
site is located in the vicinity of several Locations To Be Investigated (LTBI)
and Confirmed Disposal sites, also sites in the waiver/remediation process;
these sites are listed in the site history section of this
report.
VIII.
CONCLUSIONS AND RECOMMENDATIONS
|
A.
|
Conclusions
|
The
following conclusions are based on site inspections, record and file
investigations and interviews with pertinent individuals performed by ENVIROTECH
Planning and Design, Inc. for the 0000 Xxxx Xxxxxx property located in
Pittsfield Massachusetts:
1.
The subject property is currently the site of a 2-story plumbing supply
shop/showroom facility located at 0000 Xxxx Xxxxxx xx Xxxxxxxxxx, Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx. The facility was built in 1904. The building is heated
with a natural gas and oil fired system, and is also serviced by the municipal
drinking water and sewer systems natural gas and electric
systems.
2.
An
historical investigation of the property, including record file reviews at
the
Massachusetts Department of Environmental Protection (DEP) Pittsfield Municipal
Offices has indicated that a release of OHM has not occurred on the subject
property.
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3.
An
inspection of the subject property and its environs revealed no additional
evidence suggesting a release or threat of release of oil or hazardous materials
at the subject site.
4.
Analysis of subsurface conditions was not part of the research design based
on
the limited scope of this Historical Site Assessment. Consequently a definitive
statement regarding the condition of groundwater and/or soils at the subject
property could not be made.
B.
|
Recommendations
|
1.
ENVIROTECH Planning & Design Consultants, Inc., recommends that the
Department of Environmental Protection, Western Regional Office, 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx, (Attention Site Assessment) need not be
notified of the completion of this report at this time due to the lack of
detection of any reportable contamination of the soils or groundwater at the
subject site.
2.
We
recommend that a spill containment and control system be installed around the
(3) aboveground storage tanks, or at a minimum, that the floor trench drain
system located adjacent to the tanks be filled with concrete and sealed from
the
rest of the system. The (3) above ground storage tanks should also be properly
painted with asphalt base paint to inhibit rust and corosion of the tanks
surfaces.
3.
It
is also recommended that no hazardous materials of any kind be stored in
locations which drain to the floor trench drain system located in areas of
the
warehouse building area.
4.
We
further recommend that S&A Supply obtain a VSQG License for their
facility.
MADEP
and
USEPA databases have been examined for reports of hazardous chemical spills
or
releases within one mile of subject property and for potential sites that may
have impacted subject property. There are one facility included in the National
Priority List (NPL), one facility listed in the Comprehensive Environmental
Response Compensation and Liability Information System (CERCLIS) no Further
Remedial Action Planed (NFRAP), one Resource Conservation and Recovery Act
Corrective Action facility (RCRACOR), five Resource Conservation and Recovery
Act Generators (RCRAGN), two sites listed in the Emergency Response Notification
System (ERNS), thirty-eight sites with known chemical or petroleum contamination
(STATE), seventy-four reported spills (SPILLS), six reported leaking tanks
(LUST), two registered facilities with underground storage tanks (REG UST),
one
facility deemed sensitive to environmental discharges (Receptors), eleven
facilities listed in the Facility Index System (FINDS), one facility listed
in
the Toxic Release Inventory System (TRIS), one facility listed in the Aerometric
Information Retrieval System (AIRS), two facilities with federal mandated
environmental compliance orders (DOCKET), and one facility with a complaint
reported (OTHER) within one mile of subject property.
Subject
property is bordered buy two sites with known chemical or petroleum
contamination (STATE sites), including the GE Plant Xxxx Xxxxxx Xxxx 0 to the
north [up gradient] and west [cross gradient], and GE Oxbow Area K to the
south [cross gradient]. The chemicals of concern at these sites are
polychlorinated biphenyls (PCBs). USEPA’s General Electric Pittsfield Site Map
(annotated with subject arrow), History, and Description are included
in Attachment A.
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The
south
adjacent property, Citgo, 0000 Xxxx Xxxxxx [cross gradient] is listed in the
REG
UST database as Petroleum Bulk Storage # 0-002376 and is also listed in
the SPILLS database as Spill # W90-0644. The south adjacent property,
Xxxxx Auto, 0000 Xxxx Xxxxxx, [cross gradient] is listed in the
RCRAGN database as ID# MAD019570050. The east adjacent
property, Canine Clip Shop & Pet Store, Pittsfield Self-Storage 0000 Xxxx
Xxxxxx, [cross gradient] is listed in the REG UST database as
Petroleum Bulk Storage Facility # 0-002422 under the name Xxxxxx
Oil Company.
The
environmental profile indicates that there are neither environmental liens
against the property nor any Activity and Use Limitations (AULs) associated
with
subject property. Subject was not in listed in the MADEP Voluntary Cleanup
Program or the Brownfields Program. Relevant portions of the environmental
profile are included in Attachment A; the complete profile is available upon
request.
Conclusions
and Recommendations
We
have
determined that there are “recognized environmental conditions” onsite
and that there should be some additional investigation in order to determine
whether or not these conditions have caused any significant impact to
subject property.
Specifically,
historical sources indicate that subject may have been used as a railroad yard
and that it has served other commercial and industrial purposes. Documented
historical use of subject property includes “paper manufacturing, research and
development”, and we have determined that two (2) aboveground storage tanks
(ASTs) were utilized in the manufacturing process. The present owner cannot
tell
us and we have not yet been able to determine if these ASTs contain chemicals
or
chemical residual. A 1950 Xxxxxxx map contains a “GT (Gas Tank)” symbol
located near the northeast corner of the building on subject property; no other
historical information is available. A 10,000 gal. underground fuel oil storage
tank (UST) was removed from subject property in 1989 without any documentation
of soil conditions before or after removal. Furthermore, there are currently
three (3) 275 gal. fuel oil ASTs in service at the subject (without any means
of
secondary containment). Also, and finally, subject is surrounded to the north,
south, and west by a hazardous waste site [“General Electric”] that has been
identified by the Massachusetts Department of Environmental Protection and
the
U.S. Environmental Protection Agency, and where considerable soil and
groundwater contamination has been discovered.
The
Phase
I environmental assessment process is intended to identify "recognized
environmental conditions" that require additional investigation. This
does not mean that subject property is contaminated, only that, based on the
consulting industry’s collective experience, there is the possibility of a past
release, an existing release, or a material threat of a release into the
structures on subject property or into the ground, groundwater, or surfacewater
of subject property. Additional investigation [Phase II] is intended to resolve
any question of impairment or liability. The soil or groundwater chemistry
data
that are normally the result of Phase II sampling would become the basis for
definitive environmental conclusions, and the end point for “environmental due
diligence”.
We
recommend magnetometer/ground penetrating radar (GPR) surveys of the area
reported to contain the grave of a former 10,000 gal. fuel oil UST circa 1989
and the area reported to contain the grave of a former gasoline UST circa
1950.
We
also
recommend installation of test pits [10’-14’ deep] wherever the magnetometer and
GPR surveys identify metal anomalies, and specifically in the grave of the
former 10,000 gal. fuel oil UST, and specifically in the area reported to
contain the former gasoline UST, and specifically along the upgradient and
downgradient perimeters of the property. Representative samples of soil and/or
groundwater should be analyzed for volatile and semi-volatile organic compounds,
selected metals, pesticides and PCBs. Chemistry results should be compared
to
MADEP soil cleanup guidelines and/or groundwater standards. This would serve
to
establish a current environmental baseline for subject
property.
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We
further recommend that the ASTs once utilized in the paper manufacturing process
be investigated to determine if they contain chemicals or chemical
residual.
We
suggest that the fuel oil ASTs onsite be retrofitted with secondary containment
and that they be routinely inspected and maintained so as to prevent product
release. This suggestion represents best management practice.
The
environmental assessment that we have completed conforms to industry-wide
standards. Investigations and direct observations notwithstanding, we
do not warrant that there are absolutely no toxic or hazardous chemical
contamination at the subject property, nor do we accept any liability if such
are found at some future time, or could have been found if additional sampling
had been conducted. In view of the rapidly changing status of
environmental laws, regulations, and guidelines, we cannot be responsible for
changes in laws, regulations, or guidelines that occur after the study has
been
completed and which may affect the subject property.
Xxxxxxx
Going & Associates, Inc. has prepared this report for Universal Supply Group
Inc. (Client), although it is based in part on information obtained from third
parties not within the control of either client or Xxxxxxx Going &
Associates. While it is believed that the third-party information contained
herein is reliable, we do not guarantee the accuracy thereof.
Our
website [xxxxxxxxxxxxxxxxxxxxxx.xxx] presents the author’s resume. If there are
questions pertaining to this report, please contact the
undersigned.
Sincerely,
/s/
Xxxxxxx X. Going
Xxxxxxx
X. Going, Principal
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ATTACHMENT
A
USGS
Topographic Locator Map
Neighborhood
Aerial Photograph
Municipal
Tax Map
Photographs
of Subject Property
Portion
of Assessor’s File
Historical
USGS Topographic Area Maps (1893, 1947, 1985)
Xxxxxxx®
Fire
Insurance Maps
(1905, 1941, 1950, 1956)
Historical
Aerial Photographs (1941, 1952, 1970, 1986, 2006)
Envirotech’s
“21E Historical Site Assessment for Oil and Hazardous Materials
at
0000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx” (November 1993)
USEPA’s
General Electric Pittsfield Site Map, History and Description
(2000)
Environmental
FirstSearch™ Site-Specific City Directories:
1906,
1913, 1919, 1925-26, 1929-30, 1933, 1946, 1960, 1963-64, 1967
1992,
1997, 2002, 2007 (August 2007)
Environmental
Questionnaire Completed By Xx. Xxxxx Xxxx (August 2007)
Environmental
FirstSearch™ ASTM Environmental/Statistical Profile (August 2007)
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