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HomeMy WebLinkAboutBrookshire Home Owners Association/ADMIN/Lease Brookshire Pool/ NW LEASE AGREEMENTag THIS LEASE AGREEMENT (hereinafter "Lease") dated as of May 9, 2014, WITNESSETH, that the City of Carmel (hereinafter "Landlord"), and the Brookshire Homeowners Association (hereinafter "Tenant"), hereinafter known together as the "Parties," hereby covenant and agree that this Lease is created pursuant to Indiana Code 36-I-I I-I(b)(7), and is subject to the terms contained therein, and further covenant and agree as follows: ARTICLE I Leased Premises Section 1.1 Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Brookshire swimming pool and related improvements located at 12120 Brookshire Parkway, Carmel, Indiana as shown on Exhibit "A" attached hereto and made a part hereof, containing a swimming pool, restroom facilities, locker room and pump house (hereinafter referred to as "Leased Premises") upon the covenants, terms, and conditions contained in this Lease. During the term of this Lease, Tenant may use all of the personal property and equipment within the Leased Premises (collectively, the "Personal Property") which Personal Property is generally listed on Exhibit"B". ARTICLE II Term and Possession Section 2.1 Term. The term of this Lease shall commence on May 12, 2014 (the "Commencement Date") and end on May 31 , 2039, unless extended or sooner terminated as provided herein (the "Term"). Section 2.2 Renewal. Tenant shall have the option to extend the Term of this Lease for two (2) additional periods of twenty (20) years each, (an "Extension Term" and collectively, "Extension Terms") commencing on the expiration of the Term (or the Extension Term (as applicable)). Any such option shall be deemed automatically to have been exercised if Landlord or Tenant fails to notify the other party in writing at least one hundred twenty (120) days prior to the expiration of the Term (or the then Extension Term) of its intent for the Lease to expire. Each Extension Term shall be upon the same terms and conditions contained in the Lease for the original Lease Term. Section 2.3 Landlord's Right to Terminate. Notwithstanding any other provision of this Lease, Landlord shall have the option to terminate this Lease for any reason, upon not less than one hundred eighty (180) days written notice to Tenant (the "Termination Notice') The Termination Notice shall include the date of termination (the "Termination Date") and upon the Termination Date, Tenant shall surrender the Leased Premises to Landlord as required in this Lease. Until the Termination Date, Tenant shall fully comply with this Lease. Y:AaulhrichtU3rookshire Pool leaseVLease Agreement-Brookshire Pool final lease 5-9-14.docx5/15/2014 8:04:19 AM ARTICLE III Occupancy and Use Section 3.l Occupancy. Tenant shall use the Leased Premises as a swimming pool with related swimming activities, swim meets and swim lessons and shall not use the Leased Premises for any other purpose except with the prior written consent of the Landlord. Tenant may not operate a concession stand, except during home swim meets, or allow private meetings or parties. Tenant may charge membership fees for the use of the swimming pool which is part of the Leased Premises, subject to the foregoing use restrictions. Section 3.2 Use of Leased Premises—Rules and Regulations. Tenant shall use the Leased Premises for no unlawful purpose or act; shall commit or permit no waste or damage to the Leased Premises; shall comply with and obey, at Tenant's sole expense, all current federal, state, and local laws, regulations, codes, ordinances and orders of any governmental authority or agency, and all reasonable directions of the Landlord on reasonable written notice to the Tenant. Tenant shall, at Tenant's sole expense, make all alterations, improvements or additions to the Leased Premises required as a result of Tenant's specific use, which alterations, additions and improvements are subject to this Lease, including but not limited to Article V. Tenant shall keep the Leased Premises in a clean and orderly condition and shall conduct its business therefrom in a careful and safe manner, in accordance with the highest prevailing industry standards. Tenant shall not maintain or permit any nuisance to occur or exist on the Leased Premises, and shall not affix to or upon the exterior of the Leased Premises any sign, insignia, or decoration without the prior written consent of Landlord. Any such approved signage shall be at Tenant's sole expense, and Tenant shall comply with applicable sign ordinances with its final design and exact location reasonably acceptable to Landlord. Landlord makes no representation or warranty as to Tenant's right to conduct its business in the Leased Premises. Section 3.3 Condition of Leased Premises. Tenant has personally examined and knows the condition of the Leased Premises and accepts the same "as is" without representation or warranty by Landlord of any kind and with the understanding that Landlord shall have no responsibility with respect thereto. Section 3.4 Access to Leased Premises. Tenant shall have access to the Leased Premises twenty-four (24) hours a day, seven (7) days a week. Section 3.5 Security. Tenant shall be issued, either at execution of this Lease or prior thereto, one (I) set of keys and shall be responsible for the safekeeping of such keys and the security of the Leased Premises. The keys issued shall he "security" keys and shall not be duplicated. Tenant agrees that if, at any time, one or more of such keys are lost Tenant shall be responsible for the cost of replacement of such locks as will once again secure the Leased Premises. Tenant shall also be responsible for seeing to it that the Leased Premises are secured. Tenant further agrees to such reasonable rules and regulations that may be promulgated by the Landlord to insure the security of the Leased Premises, and shall be notified of any such rules and regulations in writing. Landlord shall retain a full set of keys for the Leased Premises. 2 Section 3.6 Management Agreement. Tenant may, subject to Landlord's reasonable approval, enter into a management agreement for the operation of the Leased Premises. Such management agreement shall provide that it is subject to the terms and conditions of this Lease, including but not limited to providing the required insurance levels and coverages, and the managing agent shall fully comply herewith. Such management agreement must be terminable by Tenant at any time for failure to comply with this Lease and otherwise upon thirty (30) days' notice. ARTICLE IV Rent Section 4.1 Minimum Annual Rent. Tenant shall pay rent for the Leased Premises in the amount of One Dollar ($1.00), per year ("Minimum Annual Rent"). Rent shall be paid in advance for the entire initial term in the amount of Twenty-Five Dollars ($25.00). Section 4.2 Utilities. Tenant shall, at Tenant's expense, obtain and pay for all utilities and trash removal. The term "Utilities" as used herein shall include, but not be limited to, gas, water, sewer, heat, and electricity within the Leased Premises. Tenant shall also be responsible for obtaining and paying for its own telephone, data, cable and internet service, if such service is obtained by Tenant. Landlord and Tenant acknowledge that certain utilities are jointly metered between the Leased Premises and Brookshire Golf owned by Landlord on adjacent property ("Brookshire Golf''). Landlord, at Landlord's option, may separately meter all or any utilities. Until such time as Landlord choses to install separate utility meters, Landlord shall determine Tenant's share of any jointly metered utilities and provide Tenant with an invoice for such utilities. Tenant shall pay such invoice within thirty (30) days of receipt. Landlord and Tenant acknowledge that electrical service to the Leased Premises and Brookshire Golf is provided through certain mechanical boxes located on each of the Leased Premises and Brookshire Golf. Accordingly each party needs access to the mechanical box on the other's property with Landlord having twenty-four (24) hour access to the mechanical box in the pump house, located in the northwest area of the pool, inside the fence of the Leased Premises, and Tenant having twenty-four (24) hour access to the mechanical box located in the basement of Brookshire Golf. Prior to accessing the mechanical box in the basement of Brookshire Golf, except as is necessary for the performance of bona fide unscheduled and unforeseen emergency repairs, Tenant shall provide fifteen (15) days advance written notice to Bob Higgins, Director of Brookshire Golf Course at 12120 Brookshire Parkway, Carmel, Indiana, 46032, prior to entering the basement of the Brookshire Golf Course clubhouse. Such notice shall include description of the type and location of such repair and an anticipated timeframe for completion of such repair. Tenant shall use its best efforts to coordinate and time such activities with Landlord in order to minimize an interference with activities at the Brookshire Golf Course. In the event of a bona fide unscheduled and unforeseen emergency, Tenant shall contact Bob Higgins at 317-501-2146 to obtain access to the mechanical box in the basement of the Brookshire Golf Course clubhouse. Landlord shall have access at all times to the mechanical box on the Leased Premises. 3 Section 4.3 Place for Payment of Rent. Minimum Annual Rent shall be payable to Landlord at the address set forth in Article XVI below or to such other person or place as the Landlord may hereafter designate in writing. Section 4.4 Net Lease. This Lease is what is commonly called a "net lease," it being understood that Landlord shall receive the rent free and clear of any and all impositions, taxes, liens, charges or expenses of any nature whatsoever in connection with its leasing of the Leased Premises and that, subject to the provisions of this Lease and any obligations of Landlord, Tenant shall be responsible for, and shall bear all costs associated with, the operation and maintenance of the Leased Premises. Tenant shall at Landlord's option, reimburse Landlord or pay to the parties respectively entitled thereto all impositions, taxes, insurance premiums, utility charges, operating charges, costs and expenses relating or attributable to the Leased Premises which arise during or are attributable to the Term or any Extension Term. All such charges, costs and expenses shall constitute "Additional Rent", and upon the failure of Tenant to pay any of such costs, charges or expenses, Landlord shall have the same rights and remedies as otherwise provided in this Lease for the failure of Tenant to pay Minimum Annual Rent. Tenant shall pay Additional Rent within thirty (30) days of the date an invoice is submitted to Tenant. Such invoice shall include reasonable evidence of the amount due and the work provided. All amounts which Tenant is required to pay pursuant to this Lease (other than Minimum Annual Rent) together with every fine, penalty, interest and cost allowed under this Lease shall constitute Additional Rent. Minimum Annual Rent and Additional Rent are sometimes collectively referred to as "Rent". Section 4.5 Taxes. In addition to Tenant's obligation under Section 4.4, Tenant shall also be responsible for the following: (a) Personal Property Taxes. Tenant, at its cost, shall pay all taxes on Tenant's personal property and trade fixtures located on or about the Leased Premises that are assessed during the Term. (b) Real Estate Taxes. Tenant, at its cost, shall pay all real estate taxes and special assessments of any kind or nature levied or assessed upon or against the Leased Premises, whether levied or assessed directly or indirectly that are assessed during the Term. ARTICLE V Alterations, Maintenance, Repairs and Tenant's Work Section 5.1 Alterations to Leased Premises. All alterations, repairs or improvements except movable trade fixtures, office furniture and equipment of the Tenant shall be and remain the property of the Landlord, unless Landlord requires Tenant to remove the alterations and restore the Leased Premises upon termination of the Lease. Tenant shall request 4 any alterations, additions, repairs, improvements, or decorations to the Leased Premises (collectively, the "Improvements") by making a written request to the Landlord. Landlord's consent shall not be unreasonably withheld so long as such Improvements are related to Tenant's use of the Leased Premises and do not materially and adversely affect the building structure or systems. If such consent is given, then such Improvements shall be made in accordance with all applicable legal requirements, in a good and workmanlike manner, in quality equal to or better than the original construction and by a contractor reasonably acceptable to Landlord which contractor shall provide such insurance, including builder's risk insurance, as Landlord may require. All Improvements shall be at the sole cost of Tenant, and Tenant hereby agrees to indemnify and hold harmless Landlord from any and all costs or expenses, including attorneys' fees that may be incurred in connection with such Improvements. Section 5.2 Tenant's Obligations for Maintenance and Repair. Landlord shall deliver the Leased Premises and Personal Property to Tenant in its as-is condition, without any representation or warranty and with the understanding that Landlord shall have no responsibility with respect therewith. Tenant has had the opportunity to inspect the Leased Premises and Personal Property and accepts the Leased Premises and Personal Property in its as-is condition, without any representation or warranty from Landlord or any of Landlord's agents, representatives or employees. Tenant, at Tenant's expense, will maintain, repair and replace the Leased Premises and Personal Property, including without limitation the pool, all equipment, all doors and windows, all HVAC, plumbing, electrical, lighting, and other building systems and utility lines which serve and are located within the Leased Premises, floor and wall coverings, light fixtures, fences, the Personal Property and any Improvements. Tenant shall keep the Leased Premises and Personal Property in good order, condition and repair, including painting and cleaning, and in a clean, sanitary and safe condition. Tenant shall comply with all applicable laws, ordinances and regulations of any governmental authority having jurisdiction with respect to the operation and use of the Leased Premises and obtain any permits or approvals required for Tenant's use and operation of the Leased Premises. If Tenant fails to perform Tenant's obligations under this Section, Landlord may at its option (but shall not be required to) enter upon the Leased Premises after ten (10) days' prior written notice to Tenant (except that in the event of an emergency, no notice shall be required), and put the Leased Premises in good order, condition and repair, and bill to Tenant the cost thereof, together with interest thereon at the rate of eight percent(8%) per annum, which shall become immediately due and payable as additional rent to Landlord. ARTICLE VI Liens Tenant shall keep the Leased Premises from any liens created or suffered by the Tenant, including, but not limited to, mechanic's and materialmen's liens. In the event any lien is filed against the Leased Premises by virtue of an act or failure to act on the part of the Tenant, which is not removed or bonded over within thirty (30) days, Landlord shall have the right, but no obligation, to pay the amount of such lien to cause its release, and such amount shall be considered additional rent to be paid to Landlord by Tenant on demand with interest at eight percent (8%) per year from the day of its payment of the lien. All liens and encumbrances created or suffered by Tenant shall attach to Tenant's interest only. 5 ARTICLE VII Assignment and Subletting Tenant shall not assign this Lease nor sublet the Leased Premises in whole or in part without the Landlord's prior written consent. Notwithstanding any assignment or sublease of the Leased Premises consented to by Landlord, without an express written agreement of Landlord, Tenant shall remain liable hereunder and shall not be released, and Landlord shall have no obligation to collect any lease payments from the sub-lessee of Tenant and shall look solely to Tenant as the source of rent payment obligations under this Lease. ARTICLE VIII Indemnity and Insurance Section 8.1 Waiver of Claims. Landlord and its agents shall have no liability to Tenant for any damage to the property of Tenant, located in or about the Leased Premises. Section 8.2 Indemnity. Tenant shall indemnify and hold Landlord its employees and agents harmless from and against any and all loss and against all claims, actions, damages, liabilities and expenses to any person or property in, on, or about the Leased Premises. Section 8.3 Insurance. (a) Landlord, as Landlord deems necessary and appropriate, will procure and maintain, throughout the Term, fire and extended coverage insurance, together with all risks coverage, on the building of which the Leased Premises is part, which shall not include the trade fixtures, personal property, office furniture and equipment of Tenant. In the event Tenant's use of the Leased Premises increases Landlord's insurance premiums under this subsection (a) or subsection (b), Tenant shall reimburse Landlord such additional insurance premium. (b) Tenant shall procure and maintain during the Term a Primary Commercial General Liability Policy written by a responsible insurance company or companies reasonably acceptable to Landlord, naming Landlord as an additional insured, and insuring from any and all losses, claims, demands, or actions for injury to or death of any one or more persons in any occurrence arising from Tenant's conduct and operation of its business in, on, or about the Leased Premises. The total insurance protection provided under such policy or policies for personal injury may not be less than $1,000,000 per occurrence, and $2,000,000.00 policy aggregate as a combined single limit of insurance for personal injury and property damage. Prior to the Commencement Date, Tenant shall furnish Landlord a certificate or certificates evidencing the continuous and uninterrupted 6 existence of the public liability insurance coverage required by this Section. (c) Tenant shall also, at its expense, carry and maintain the following (i) insurance for its fixtures, improvements, and contents which insurance shall insure all contents for their insurable value; (ii) Worker's Compensation insurance in at least the minimum statutory amounts; (iii) commercial automotive liability insurance providing coverage on an occurrence basis with not less than $1,000,000.00 combined single limit coverage "any auto"; and (iv) umbrella liability insurance in the amount of $2,000,000.00 providing excess coverage overall limits and coverages noted above. All policies required to be maintained by Tenant shall (i) be maintained by reputable, licensed companies reasonably acceptable to Landlord; (ii) be stated to be primary and non- contributing; (iii) contain waivers of subrogation clauses satisfactory to Landlord and consistent with the last paragraph of this Article VIII; (iv) require thirty (30) days prior written notice to Landlord of any cancellation, non-renewal or annulment of such policies; (v) contain insurance of Tenant's contractual obligations hereunder; and (vi) name Landlord as an additional insured (other than the Worker's Compensation policy). Tenant shall not do or permit to be done anything which invalidates any such insurance policies, whether maintained by Landlord or Tenant. Notwithstanding any other provision or any indemnity set forth herein, Tenant and Landlord each hereby waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such other party or its property or the property of others under its control to the extent that such loss or damage is insured under any insurance policy in force at the time of such loss or damage. Tenant shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. For purposes of this paragraph, each party shall he deemed to carry insurance for its deductible. ARTICLE IX Subordination to Mortgages This Lease and all rights of the Tenant hereunder shall be subject and subordinate to the rights of the lien or liens of any mortgage or mortgages now, or any time hereafter, in force against the fee title to, or leasehold interest of Landlord in the Leased Premises, and to all advances made or hereafter to be made upon the security thereof provided that the holder of any mortgage shall agree that the Tenant shall have the right to remain in possession of the Leased Premises so long as it shall comply with the terms of this Lease and not be in default hereunder. If requested by the holder of any such mortgage or mortgages, Tenant agrees to execute and deliver to such holder an instrument, in a commercially reasonable form, specifically 7 subordinating this Lease to the lien of such mortgage or mortgages, subject to the above provision ARTICLE X Default The occurrence of any one or more of the following matters constitutes a Default by Tenant under this Lease: (a) Failure by Tenant to pay, within five (5) days after the due date thereof any installment of Rent or any Additional Rent; (b) Failure by Tenant to keep, perform or observe any other covenant, agreement, condition or provision hereunder and shall fail to remedy such default within twenty (20) days after notice by Landlord to Tenant; or if such default is one that will take longer than twenty (20) days to remedy, Tenant fails to commence curing such default within twenty (20) days and thereafter fails diligently to pursue such cure to completion, provided that such cure period shall not exceed sixty (60) days; (c) The levy upon or under execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, and the same is not removed, or adequate security to hold Landlord harmless is not posted therefore, within thirty (30) days; (d) The Tenant becomes insolvent or bankrupt or admits in writing its inability to pay debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for the Tenant or for the major part of its property, if not cured within thirty (30) days after receipt of written notice by Landlord to Tenant; (e) A trustee or receiver is appointed for the Tenant or for the major part of its property, if not cured within thirty (30) days after receipt of written notice by Landlord to Tenant; (t) Bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any bankruptcy law, or similar law for the relief of debtors, are instituted by or against the Tenant; (g) Abandonment of the Leased Premises; or (h) Failure of Tenant to maintain its 501(c)(7) status. 8 ARTICLE XI Remedies Upon Default Upon an Event of Default, Landlord, in addition to and without prejudice to any other rights or remedies it may have, shall have the right to: (a) re-enter and repossess the Premises or any part thereof, removing all persons and property, which property shall be stored in a public warehouse or elsewhere at the cost and risk of Tenant; (b) terminate this Lease and recover from Tenant all damages incurred by Landlord as a result of Tenant's default; (c) bring suit for: (i) the collection of the Rent or other amounts for which Tenant is in default; or (ii) the performance of any other obligation of Tenant hereunder; without entering into possession or terminating this Lease; (d) re-enter the Premises and, without terminating this Lease, relet the Premises, applying the rent it receives first to the payment of the reasonable expenses of such re-entry and reletting, second to the payment of the Rent accruing hereunder, and finally to future payments of the Rent. Whether or not the Premises arc relet, Tenant shall remain liable for any deficiency in the Rent. Landlord shall use good faith efforts to relet the Premises and mitigate damages; (e) terminate this Lease effective on the date that is 10 days following receipt by Tenant of Landlord's notice of termination, whereupon Tenant shall be wholly discharged from this Lease; and (t) continue this Lease in effect and recover the Rent and other charges and amounts as they become due. ARTICLE XII Damage by Fire and Eminent Domain Section 12.1 Fire or Casualty. If the Leased Premises are damaged or destroyed by fire or other casualty, then Landlord, at Landlord's sole option, may repair or rebuild the Leased Premises. During the period of repair or rebuilding, the Rent and Additional Rent payable by Tenant under this Lease shall abate in proportion to the extent of the damage or destruction on Tenant's ability to conduct its business, as reasonably determined by Landlord. Landlord shall notify Tenant within sixty (60) days of such damage if Landlord elects to repair or rebuild the Leased Premises. If Landlord elects not to repair or rebuild the Leased Premises, this Lease shall terminate as of the date of such damage. Section 12.2 Eminent Domain. If all or any substantial part of the Leased Premises shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, the term of this Lease shall end upon, and not before, the date when the 9 possession of the part so taken shall be required for such use or purpose, and the proceeds of such award shall be the sole property of the Landlord, except that the Tenant shall be entitled to any compensation awarded for Tenant's trade fixtures and moving expenses. If less than the entire Leased Premises are so taken and the Lease has not otherwise been terminated, Landlord shall, at its sole option, restore the Leased Premises to the extent necessary to make it a usable property including restoring all access and services to the Leased Premises. In the event of any such taking rent shall be equitably abated. ARTICLE XIII Surrender of Leased Premises At the end of the Term or other sooner termination of this Lease, the Tenant will peaceably deliver up to the Landlord possession of the Leased Premises and Personal Property, in at least as good condition as received, ordinary wear and tear excepted. Upon the termination of this Lease, Tenant shall at Tenant's sole cost, remove all unattached, movable trade fixtures, office furniture and equipment installed by the Tenant, unless otherwise agreed to in writing by the Landlord. Tenant shall also repair any damage caused by such removal. Property not so removed within thirty (30) days following the termination of this Lease shall be deemed abandoned by the Tenant and title to the same shall thereupon pass to the Landlord. In the event the Tenant continues to occupy the Leased Premises after the last day of the term hereby created, or after the last day of any extension of said term without the consent in writing of Landlord, Tenant shall be deemed a tenant at sufferance and shall pay rent for such occupancy at the fair market value of the Leased Premises as reasonably determined by Landlord, all attorney's fees and expenses incurred by Landlord in enforcing its rights hereunder, plus any other damages occasioned by such holding over. The provisions of this Article XIII shall survive the termination of this Lease. ARTICLE XIV Waiver The waiver by Landlord of any term, covenant, or condition herein contained shall be in writing, and a waiver in one instance shall not be deemed to be a waiver of such term, covenant or condition in the future, or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent or other performance hereunder by the Landlord shall not be deemed to be a waiver of any preceding breach by the Tenant of any term, covenant or condition of this Lease, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent or other performance, unless the Landlord shall specifically so state in writing. 10 ARTICLE XV Environmental Except in the ordinary course of Tenant's business and in full compliance with applicable laws, Tenant shall not cause or permit any Hazardous Substance (as defined below) to be used, stored, generated or disposed of on or in the Leased Premises by Tenant, Tenant's agents, employees, contractors, or invitees. If Hazardous Substances are used, stored, generated, or disposed of on or in the Leased Premises or if the Leased Premises become contaminated in any manner for which Tenant is legally liable, Tenant shall indemnify and hold harmless the Landlord from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, a decrease in value of the Leased Premises, damages caused by loss or restriction of rentable or usable space, or any damages caused by adverse impact on marketing of the space, and any and all sums paid for settlement of claims, attorneys' fees, consultant and expert fees) arising during or after the Term and arising as a result of that contamination by Tenant. This indemnification includes, without limitation, any and all costs incmTed because of any investigation of the site or any cleanup, removal or restoration mandated by a federal, state, or local agency or political subdivision. Without limitation of the foregoing, if Tenant causes or permits the presence of any Hazardous Substance on the Leased Premises and that results in contamination, Tenant shall promptly, at its sole expense, take any and all necessary actions to return the Leased Premises to the condition existing prior to the presence of any such Hazardous Substance on the Leased Premises. Tenant shall first obtain Landlord's written approval for any such remedial action. As used herein, "Hazardous Substance" means any substance that is toxic, ignitable, reactive or corrosive and that is regulated by any local government, the state of Indiana, or the United States Government. "Hazardous Substance" includes any and all material or substances that are defined as "hazardous waste," "extremely hazardous waste," or a "hazardous substance" pursuant to state, federal or local governmental law. "Hazardous Substance" includes but is not restricted to asbestos, polychlorobiphenyls, and petroleum. ARTICLE XVI Notices All notices and demands that may be or are required to be given by either party to the other hereunder shall be in writing and shall be sent by national overnight delivery or United States certified or registered mail, postage prepaid, return receipt requested, addressed: If to Landlord at: City of Carmel One Civic Square Cannel, IN 46032 Attn: Mayor I1 With a copy to: City of Carmel One Civic Square Carmel, IN 46032 Attn: City Attorney If to Tenant at: HOA President 12120 Brookshire Parkway Carmel, Indiana 46033 or to such other person or to such other place as either party may from time to time designate in writing to the other. ARTICLE XVII Miscellaneous Provisions Section 17.1 General. Landlord covenants that Tenant, upon paying the rent and performing each and every covenant and agreement hereof, shall peacefully and quietly hold, occupy and enjoy the Leased Premises throughout the term hereof, without bother or hindrance by any person claiming or holding under or through Landlord. Landlord, Landlord's agents, and Landlord's prospective lessees, purchasers or mortgagees shall be permitted to inspect and examine the Leased Premises at all reasonable times and Landlord shall have the right to make any repairs to the Leased Premises that the Landlord may deem necessary, but this provision shall not be construed to require Landlord to make repairs. Section 17.2 Parking. Tenant shall have non-exclusive use of the parking areas adjacent to the Leased Premises as designated from time to time by Landlord. Landlord shall have the right to restrict parking as necessary for Landlord's operation of Brookshire Golf Landlord and Tenant agree to cooperate in good faith to address any parking issues which may arise. Section 17.3 Writing Controls. It is agreed that Landlord has not made any statement, promise or agreement or taking upon itself any engagement whatever verbally or in writing in conflict with the terms of this Lease or that in any way modifies, varies, alters, enlarges or invalidates any of its provisions and that no obligation of the Landlord shall be implied in addition to the obligation herein stated. Section 17.4 Costs and Expenses of Enforcement. If Tenant shall default in the performance of any of its obligations under this Lease, and such default continues after the expiration of the notice or grace period provided in this Lease, the Landlord may perform such obligation for the account and at the expense of the Tenant. All costs incurred by the Landlord in performing such obligation and all attorneys' fees and expenses of such party incurred in enforcing any of the obligations of the Tenant under this Lease, together with interest at the rate of eight percent(8%) per annum, shall be due and payable by the Tenant on demand. Section 17.5 Successors and Assigns. Except as herein limited, this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and 12 assigns. Tenant shall not convey, assign or mortgage Tenant's interest in the Leased Premises without written consent of Landlord. Section 17.6 Conveyance, Assignment or Mortgage by Landlord. Landlord shall have the right to convey, assign or mortgage Landlord's interest in the Leased Premises and to convey, assign or mortgage Landlord's interest in this Lease Agreement at any time, to any person or organization whatsoever, without the prior or subsequent agreement or consent of the Tenant. Section 17.7 Tenant Certification of Authority and Authorization. Tenant represents, covenants and warrants that it is a 501(c)(7) and is authorized to enter into this transaction and to carry out its obligations hereunder. This Lease has been duly authorized by the Tenant and its appropriate officials have been directed and authorized to execute this Lease. Tenant shall maintain the status as a 501(c)(7), in good standing and in compliance with all applicable laws,rules,regulations and ordinances throughout the Term. Section 17.8 Governing Law and Severability. The laws of the State of Indiana govern the validity, performance, and enforcement of this Lease. The invalidity or unenforceability of any provision of this Lease does not affect or impair any other provision. Section 17.9 Limitation of Landlord's Liability. Landlord shall not be liable for damage either to any person or property due to the condition of the Leased Premises or to the occurrence of any accident in or about the Leased Premises or due to any act or neglect of Tenant or any other occupant of the Leased Premises or of any person. Tenant shall be responsible and liable to Landlord for any damage to the Leased Premises caused by it or its employees, agents, contractors or invitees and for any act done on the Leased Premises by Tenant or any person coming on the Leased Premises by the license of Tenant, express or implied; and Tenant shall save Landlord harmless from any or all liability to any person for damage to any person or property resulting from such use or occupancy of the Leased Premises and shall protect against such liability with public liability insurance in the amounts required herein. If Landlord shall fail to perform or observe any term, covenant, condition or obligation required to be performed or observed by it under this Lease, and if Tenant shall, as a consequence thereof, recover a money judgment against Landlord, Tenant agrees that it shall look solely to Landlord's right, title and interest in and to the Leased Premises for the collection of such judgment, that being the sole asset to which Tenant may look for payment of any such judgment; and Tenant agrees that no other assets of Landlord shall be used to satisfy Tenant's judgment and that Landlord shall not be liable for any deficiency. The references to "Landlord" in this Lease shall be limited to mean and include only the owner or owners, at the time, of the fee simple interest in the Leased Premises. In the event of a sale or transfer of such interest (except a mortgage or other transfer as security for a debt), the "Landlord" named herein, or, in the case of a subsequent transfer, the transferor, shall, after the date of such transfer, be automatically released from all personal liability for the performance or observance of any term, condition, covenant or obligation required to be performed or observed by Landlord hereunder; and the transferee shall be deemed to have assumed all of such terms, conditions, covenants and obligations accruing after the date of transfer. 13 Section 17.10 Changes, Modifications or Amendments. This Lease may not be changed, modified, discharged or terminated orally or in any other manner than by an agreement mutually signed by the parties hereto or their respective successors and assigns. Section 17.11 Entire Agreement. This Lease contains all the representations and the entire understanding between the parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda, or agreements are replaced in total by this Lease. Section 17.12 Compliance with Laws. Tenant hereby represents that it shall comply with the existing laws of the United States, the State of Indiana and the City of Carmel and specifically agrees that it, (a) will not discriminate against any employee, applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions, or privileges of employment because of race, religion, color, age, sex, handicap, national origin or ancestry, disabled veteran status or Vietnam era veteran status; (b) is enrolled in, and until it no longer exists, uses, the E-Verify program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, as amended, (the "E-verify Program") to verify the work eligibility status of all Landlord's employees hired after June 30, 2011, and will otherwise comply with Indiana Code 22-5-1.7 as to any subcontractor used by Landlord; and (c) has not entered into a combination or an agreement relative to the price to be offered by a person, to prevent a person from making an offer, to induce a person to refrain from a making an offer and that Landlord's offer was made without reference to any other offer. Pursuant to Indiana Code 5-22-16.5-13, Tenant certifies that it does not engage in investment activities within the Country of Iran. Breach of these covenants shall be deemed a material breach of this Lease and Landlord may terminate the Lease with verbal notice to Tenant. [Signature page follows] 14 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease and if this Lease is executed in counterparts, each shall he deemed an original. Approved and Adopted this day of , 20_ CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: ames Brainard, Presiding Officer Date: /vlN ./ /5 , c2c- ! ' / Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Diana Cordray, IMCA, Clerk-Treasurer Date: TENANT By: Printed: >v ?& b C frCr- Title: 6!oA F/Zfgib&J Rlzoolt&6ht..F (-faA' 15 EXHIBIT A Depiction of the Leased Premises Property Address: 12120 Brookshire Parkway, Carmel, IN 46033 File No.: 14-9969 Parcel I: A part of the Northeast Quarter of Section 32, Township 18 North, Range 4 East, in Hamilton County, Indiana, being more particularly described as follows: Commencing at the Northwest corner of Lot 111 in Brookshire, Third Section, as recorded in Book 3, page 145, in the Office of the Recorder of Hamilton County, Indiana; said Northwest corner being North 89°35'38" East from a brass plug found in the centerline of Windsor Drive; thence South 88°22'40" East (plat bearing) along the North line thereof a distance of 141.77 feet to the Northeast corner of said Lot 111; thence North 78°54'21" East a distance of 75.11 feet to the corner of an existing fence and the Point of Beginning; thence North 40°16'59" East along said fence a distance of 78.84 feet; thence North 49°54'31" West a distance of 12.48 feet; thence North 40°32'18" East a distance of 22.44 feet; thence South 50°42'16" East a distance of 21.08 feet; thence South 41°39'28" West a distance of 10.56 feet to an existing fence; thence South 49°46'01" East along said fence and exterior wall of an existing building a distance of 132.34 feet, the following 3 courses are along said exterior of an existing building; (1) thence South 40°10'16" West a distance of 1.40 feet; (2) thence North 49°49'44"West a distance of 1.32 feet; (3) thence South 40°10'16" West a distance of 33.50 feet to an existing party wall; thence North 49°49'44" West along said party wall a distance of 30.20 feet to the exterior wall of said existing building, the following 3 courses are along said exterior wall; (1) thence South 40°10'16"West a distance of 37.39 feet; (2) thence North 49°49'44" West a distance of 15.86 feet; (3) thence South 40°18'22" West a distance of 18.04 feet to an existing fence line; thence North 50°10'32" West along said fence a distance of 7.81 feet; thence South 39°34'40" West a distance of 6.00 feet; thence North 50°10'32" West a distance of 5.50 feet; thence North 39°34'40" East a distance of 6.00 feet to said existing fence; thence North 50°10'32" West along said fence a distance of 80.23 feet to the Point of Beginning. Containing 0.254 acres, more or less. Parcel II: Together with an easement for ingress and egress to and from the entrance to the above described property over and from the adjoining parking lot on and along the existing sidewalk and the use of a reasonable number of parking spaces in the adjoining parking lot to be designated by Grantor, as set forth in Warranty Deed dated May 10, 2004, recorded February 24, 2005, as Instrument No. 200500011169, in the Office of the Recorder of Marion County, Indiana. 16 EXHIBIT B Pace I of 3 List of Personal Property 5' White Board Phone and Speaker System Portable Fan 1 Pool Screen on Pole I Pool Screen 1 Pool Long Handle Hook 1 Extension Pole 2 Cash Boxes 3 Fire Extinguishers 1 Mail (Information Box) 2 Scissors 1 1 Hole Punch 46 Outside Chairs 60 Outside Lounge Chairs Bathroom Mirror 5 55 gallon Trash Cans 1 Garden Hose 6 Table Umbrellas 1 15 gallon Trash Can 30 gallon Trash Can I Mop and Bucket 2 Shelving Units 12 Lockers 1 Power Washer t Portable Water Fountain 17 EXHIBIT B Page 2 of 3 I0 Whistles and Lanyards 1 2'x3' White Board Small 5Cubic Fl Freezer 3 1 Gallon Containers of Anti-Freeze Shop Vacuum 1 Back Board 2 Life Guard Umbrellas AM/FM Audio Receiver 3 Life Vest (Waist) 2 Bar Stools 3 Water Testing Kits Wall Clock Desk Clock 2 First Aid Kits 2 Life Saving Rings on Ropes 7 Umbrella Bases 2 Life Guard Stands 4 Sets of Pool Steps I Diving Board 3 10' Long Metal Bleachers 2 Picnic Tables (Metal and Heavy Plastic) 6 Round Glass Top Patio Tables 2 Large Flower Pots 2 Large S Hooks for Skimmers 18 EXHIBIT B Page 3 of 3 Pool Vacuum 1 Various Hoses and Tools for Pool Vacuum 2 Brooms and Dust Pans 1 105c5' White Board Several Baskets and Filters Several Locks for Lockers Severallnk Pens Several "Life Guard on Duty" Signs SeveralLittle Swimmer Pants (drawer full) SeveralBottles of Cleaning Products SeveralRolls of Toilet Tissue SeveralCans of Paint Property owned by Swim Team but located on Premise: 1 Cart and Cover for Lane Roping 4 Lane Roping for 4 Lanes 1 8' Heavy Plastic Table 1 Gas Grill 2 Propane Tanks 22 Pool Boogie Boards 1 Portable Canopy 4 Pool Flags 19 RESOLUTION NO. BPW-06-18-14-02 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING RECEIPT OF CONTRACT WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor may enter into contracts on behalf of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard, has caused to be signed the City contract attached hereto as Exhibit A (the "Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk-Treasurer's Office, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as follows: I. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to the public for review. Q SO RESOLVED this I V day of , 2014. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: Ja s Brainard, Presiding fficer Date: 6 /��,`` l/ 074 Ma'Ann ur , M m r Date: —�(� Lori S. Watson. Memb r Date: CflfiJ1'-i ATT 7 T: Tana Cordray, IMCA, rk-y reasurer Date: Z1E Basswly DocumentsBBPW-Resolu5ons120141Ackno ledge Brookshire HOA Lease Agreement-2014.docx5/30/2014 3'.56 PM