HomeMy WebLinkAboutBFI Properties/$340,564.50/Gradle Drive Lease 9-2-20 for City Court 477/481/483 GRADLE DRIVE
LEASE
(approximately 6,075 rentable square feet)
between
BFI PROPERTIES, LLC
("Landlord")
and
CITY OF CARMEL, INDIANA
("Tenant")
(9/3/2020)
LEASE
THIS LEASE(this"Lease"),executed to be effective as of September 3, 2020("Effective Date"),
by and between BFI PROPERTIES, LLC, an Indiana limited liability company, with a mailing address of
6470 Meridian Parkway, Unit A, Indianapolis, Indiana 46220, ("Landlord"), and CITY OF CARMEL,
INDIANA with a mailing address of One Civic Square, Carmel, Indiana 46032 ("Tenant"), WITNESSES
THAT, in consideration of the mutual covenants hereinafter contained, and each act performed hereunder
by either of the parties, Landlord and Tenant agree as follows:
ARTICLE I
PREMISES AND BUILDING
Section 1.01. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the space known as 477,481 and 483 Gradle Drive and identified as Suite 100 depicted in Exhibit
A,which is attached hereto and by reference made a part hereof,consisting of approximately 6,075 square
feet of leased area (the "Premises") in the building commonly identified as 481 Gradle Drive, Carmel,
Indiana and the real estate upon which such building is located, as more particularly described in Exhibit B
attached hereto and by reference made a part hereof(the building and such real estate is hereinafter referred
to as the "Building"). Except as otherwise noted herein, Landlord reserves to itself the use of the roof,
exterior walls, and the area above and below the Premises together with the right to maintain, use, repair,
and replace pipes, ducts, conduits, wires and structural elements leading through the Premises and which
serve other parts of the Building.
Section 1.02. Changes in Building. Landlord reserves the right to change the Building by adding
land and/or buildings thereto and/or by changing therein the number and location of buildings, building
dimensions,the exterior facade of buildings,the number of floors in any of the buildings, store dimensions,
and the identity and type of other stores and tenancies; provided only that the size of the Premises shall not
be changed, and reasonable access to the Premises shall not be materially impaired.
Section 1.03. Common Areas. Landlord grants to Tenant, its agents, employees, invitees and
concessionaires, the non-exclusive right during the Lease Term to use the common areas of the Building
("Common Areas")and ingress,egress and other facilities in the Common Areas as shall be made available
by Landlord. Tenant's use of the Common Areas shall be in common with others entitled to the use thereof
and subject to the provisions of this Lease. Notwithstanding the foregoing,Tenant shall not use any portion
of the Common Areas to the extent such use would limit or restrict access to another tenant's premises in
the Building.
ARTICLE II
TERM OF LEASE
Section 2.01. Lease Term. The"Term"or"Lease Term"of this Lease shall commence upon the
date that Landlord makes the Premises available for Tenant's possession in broom clean condition and with
all mechanical systems in good working order(the "Occupancy Date"), which date shall be September 3,
2020, and shall continue for sixty (60) months following the Rent Commencement Date (hereinafter
defined). Notwithstanding the foregoing provisions of this Section, each party may enforce and agrees to
be bound by the terms and conditions of this Lease from the date of execution hereof.
Notwithstanding any other provision of this Lease, all payment obligations of the Tenant pursuant to
this Lease shall be subject to annual appropriation by the fiscal body governing the Tenant or other
appropriate fiscal body. In the event no funds, or insufficient funds, are appropriated and budgeted in any
fiscal period for payments due under this Lease,then Tenant will immediately notify the Landlord in writing
and provide proper verification of such occurrence and upon the non-payment of a scheduled payment
under this Lease. The Lease shall terminate and become null and void on the last day of the fiscal period
for which appropriations were received. In the event of such termination, Tenant agrees to peaceably
surrender possession of the Premises to Landlord or its assignee on the date of such termination and pay all
outstanding amounts due under this Lease up to the date of such termination and a termination fee equal to
unamortized amount of the (i) leasing commissions; and (ii) reasonable legal fees paid by Landlord with
respect to the negotiation of this Lease, both(i) and(ii)as amortized on a straight-line basis over the Term
at eight percent(8%)per annum.
Section 2.02. Delivery of Possession. Tenant acknowledges that it has had the opportunity to
inspect the Premises. Landlord has made no representation or warranty, express or implied, as to the
condition or suitability of the Premises. Landlord shall deliver and Tenant shall accept the Premises and
any leasehold improvements thereto in their then-existing condition,on an"AS-IS, WHERE-IS"basis and
with all faults. Landlord shall not be required to make for the benefit of Tenant any improvement to or
repairs of any kind or character in or to the Premises.
Section 2.03. Tenant's Work. Commencing upon the Occupancy Date, Tenant shall be
permitted to enter upon the Premises and install its trade fixtures and such other articles as it may need in
the operation of the business to be conducted from the Premises(collectively, "Tenant's Property")and to
renovate the Premises in accordance with plans and specifications, which are hereby agreed upon by
Landlord and Tenant, and are attached hereto as Exhibit D and by reference made a part hereof("Tenant's
Work"). All of Tenant's Work shall be completed in a good and workmanlike manner by licensed, insured
and bonded contractors. Landlord agrees to cooperate with Tenant and any state, county and municipal
authorities in obtaining any permits, licenses and approvals required for Tenant's Work and shall execute
any documents reasonably required for that purpose. The costs of any changes or deviation from the agreed
upon plans and specifications requested by Tenant shall be the sole responsibility of Tenant.
Section 2.04. Period Prior to Occupancy Date. In the event Landlord permits Tenant's entry
upon the Premises prior to the Occupancy Date, such entry shall be governed by and subject to the
provisions, covenants and conditions of this Lease with respect to insurance, indemnity, remedies and
mechanic's liens. Except for Landlord's negligence or willful misconduct, Landlord shall have no
responsibility or liability whatsoever for any loss or damage to any of Tenant's leasehold improvements,
fixtures, equipment, merchandise or personal property installed or placed in the Premises prior to the
Occupancy Date.
Section 2.05. Lease Year. The term "Lease Year"is hereby defined to mean a period of twelve
(12) consecutive months; provided, however, if the Rent Commencement Date is not the first day of a
calendar month, Rent shall be prorated for the first and last months of the Term and the first Lease year
shall be the first partial month plus the next twelve(12)consecutive months.
Section 2.06. Holding Over. In the event Tenant remains in possession of the Premises after the
expiration of the Lease Term, without the execution of an amendment extending the term of this Lease or
a new Lease and with the consent of Landlord, it shall be deemed to be occupying the Premises as a tenant
from month to month at one hundred twenty-five percent(125%) of the monthly rental rate applicable at
the time of expiration of the Term and subject to all other conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month to month tenancy. If Tenant remains in possession of
the Premises pursuant to this Section, Tenant shall be required to vacate the Premises upon no more than
thirty(30)days' written notice from Landlord to Tenant to so vacate.
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ARTICLE III
RENT
Section 3.01. Minimum Annual Rent. Commencing on the Occupancy Date and continuing until
the Rent Commencement Date, Tenant shall pay no rent to Landlord. Commencing on September 3, 2020
(the "Rent Commencement Date"), Tenant shall pay to Landlord throughout the Lease Term annual rental
in the amounts set forth on the following schedule,payable on the first day of each month in equal monthly
installments,without notice,demand,deduction or set-off as set forth on the following schedule.
Period Rent/s.f. Yearly, Monthly
Terns:
Year 1 $8.76 $53,217.00 $4,434.75
Year2 $11.30 $68,647.50 $5,720.63
Year 3 $11.65 $70,773.75 $5,897.81
Year 4 $12.00 $72,900.00 $6,075.00
Year 5 $12.35 $75,026.25 $6,252.19
The term"Minimum Annual Rent"shall mean the annual rental during the Lease Term. Any partial
month's Minimum Annual Rent shall be calculated based on a 365-day calendar year and the number of
days in such partial month. Rent checks are to be made payable to Landlord and sent to Landlord at the
address first set forth above or at such other address as may be specified by Landlord in accordance herewith
and Tenant hereby agrees that upon Landlord's request, all payments of Rent shall be made pursuant to
Landlord's automated clearinghouse (ACH) payment instructions. The first monthly installment of
Minimum Annual Rent shall be paid upon execution of this Lease.
Section 3.02. Additional Rent. In addition to the payment of Minimum Annual Rent as provided
in this Article, Tenant shall pay to Landlord as "Additional Rent" all other sums of money and charges
required to be paid by Tenant to Landlord under this Lease whether or not the same are designated
"Additional Rent." If any such sum or charge is not paid at the time provided in this Lease, it shall
nevertheless be collectible as Additional Rent with the next installment of Minimum Rent, provided that
nothing contained herein shall be deemed to suspend or delay the payment of such sum or charge or to limit
any remedy of Landlord in respect to its nonpayment. Hereafter,the term"Rent"shall refer to all Minimum
Annual Rent and Additional Rent.
Commencing as of January 1, 2021, for each Lease Year("Comparison Year") Tenant shall pay,
as Additional Rent, Tenant's Proportionate Share(hereinafter defined) of the Building Maintenance Costs
(as defined in Section 7.01 herein), Insurance Premiums (as defined in Section 8.04), Taxes and
Assessments(as defined in Article IX)(hereinafter, Building Maintenance Costs, Insurance Premiums and
Taxes and Assessments shall be referred to collectively as"Operating Costs")in excess of the total amount
of Operating Costs incurred by Landlord in calendar year 2020 (the "Base Year"). Notwithstanding the
foregoing, for the Building Maintenance Cost that are capital improvements or replacement of Common
Areas or building components made by, or on behalf of, Landlord to the Building, shall be reasonably
amortized by Landlord over the useful life of the capital improvement or replacement, in accordance with
generally accepted accounting principles. As used herein, "Tenant's Proportionate Share" shall mean the
ratio determined by dividing the rentable square feet of the Premises by the rentable square feet of the
Building (approximately 31,448 r.s.f.) and any adjoining buildings which are owned and commonly
maintained and managed by Landlord,as reasonably determined by Landlord. Tenants Proportionate Share
shall therefor initially be nineteen and 3/10 percent (19.3%). Landlord shall provide Tenant with a good
faith estimate of the increased amount of Operating Costs for each Comparison Year during the Term over
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the amount of Operating Costs for the Base Year. On or before the first day of each month, Tenant shall
pay to Landlord a monthly installment equal to one-twelfth (1/12) of Tenant's Proportionate Share of
Landlord's estimate of the difference between the amount of Operating Costs for the Comparison Year and
the amount of Operating Costs for the Base Year. If Landlord determines that its good faith estimate was
incorrect by a material amount, Landlord may provide Tenant with a revised estimate. After its receipt of
the revised estimate, Tenant's monthly payments shall be based upon the revised estimate. If Landlord
does not provide Tenant with an estimate of the total amount of Operating Costs by January 1 of a calendar
year,Tenant shall continue to pay monthly installments based on the previous year's estimate until Landlord
provides Tenant with the new estimate. Upon delivery of the new estimate, an adjustment shall be made
for any month for which Tenant paid monthly installments based on the previous year's estimate. Tenant
shall pay Landlord the amount of any underpayment within thirty(30)days after receipt of the new estimate.
Any overpayment shall, at Landlord's election, either be refunded to Tenant within thirty (30) days or
credited against the next due future installment(s)of Additional Rent.
As soon as is practical following the conclusion of each calendar year, Landlord shall furnish
Tenant with a statement of the actual amount of Operating Costs and Tenant's Proportionate share thereof,
as applicable. If the estimated amount of Tenant's Proportionate Share of Operating Costs is more than the
actual amount of Tenant's Proportionate Share of Operating Costs for the given year, Landlord shall apply
any overpayment by Tenant against Additional Rent due or next becoming due,provided if the Term expires
before the determination of the overpayment, Landlord shall refund any overpayment to Tenant after first
deducting the amount of Rent due. If the estimated amount of Tenant's Proportionate Share of Operating
Costs is less than the actual amount of Tenant's Proportionate Share of Operating Costs for such prior year,
Tenant shall pay Landlord,within thirty(30)days after its receipt of the statement of Tenant's Proportionate
Share of and Operating Costs,any underpayment for the prior calendar year.
Section 3.03. Past Due Payments. If any monthly installment of Minimum Annual Rent,
Additional Rent or any other payment owing from Tenant to Landlord pursuant to this Lease remains unpaid
for five(5)business days after when the same is due and payable, such unpaid amounts shall bear interest
from the due date thereof to the date of payment at the rate of one and one-half percent(1.5%)per month,
or, if less,the maximum rate permitted by applicable law("Interest Rate"),from the date due to the date of
payment for the purpose of defraying the additional expenses incident to the handling of such overdue
amount.
ARTICLE IV
OCCUPANCY AND USE OF PREMISES
Section 4.01. Occupancy. The Premises shall be used and occupied by Tenant solely for the
purposes of operating a Carmel City Court and all related activities, and for no other purpose without the
prior written consent of Landlord. Landlord and Tenant acknowledge that the Carmel City Court has
jurisdiction over cases as authorized by Indiana Code Sections 33-25-2-3 and 33-22-2-4 but no other matters
shall be handled by the Court at the Premises without the prior written consent of Landlord.
Section 4.02. Use. Tenant shall use the Premises for no unlawful purpose or act; shall commit
or permit no waste or damage to the Premises;shall,at Tenant's expense,comply with and obey all federal,
state, municipal and other applicable laws, regulations, or orders of any governmental authority or agency
relating to the operating, managing, insuring, equipping, lighting, fixturing, repairing, replacing and
maintaining the Premises, or shall cause the Premises to be in compliance with all federal,state,municipal
and other applicable laws; shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants of the Building or injure them;
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and shall not do or permit anything to be done which will invalidate commercial general liability insurance
on or as to the Premises and/or the Building. Tenant shall comply with all reasonable requests of any carrier
of the foregoing insurance risk. Landlord shall not be responsible to Tenant for non-performance by any
other tenant or occupant of the Building of any of the rules and regulations of the Building promulgated by
Landlord, but agrees to take reasonable measures to assure such other tenants' performance.
ARTICLE V
UTILITY SERVICES
Section 5.01. Payment by Tenant. Commencing on the Occupancy Date,payment for all utilities
based upon or in connection with the Premises and all janitorial and trash removal services with respect to
the Premises shall be made by Tenant, either directly to the provider thereof or to Landlord as Additional
Rent, as applicable. Landlord shall have the right to equitably allocate any non-separately metered utilities
or services among those tenant's which utilize such utilities or services, in Landlord's reasonable
determination. Tenant shall not install any equipment which can exceed the capacity of any utility facilities.
If any equipment installed by Tenant requires additional utility facilities, the same shall be installed at
Tenant's expense in compliance with all code requirements, and all plans and specifications for such
installation shall be submitted to Landlord for approval prior to commencement thereof, which approval
shall not be unreasonably withheld, delayed or conditioned.
Section 5.02. Suspension of Services. Landlord reserves the right to suspend service of the
heating, elevators, plumbing, electrical, air conditioning or other mechanical systems in the Premises and
the Building, and sweeping, snow removal and maintenance of the Common Area, when necessary by
reason of governmental regulations, civil commotion or riot, accident or emergency, or for repairs,
alterations,or improvements which are in the reasonable judgment of Landlord desirable or necessary, or
for weather or for any other reason beyond the power or control of Landlord. Landlord shall not in any
way be liable or responsible to Tenant for any loss or damage or expense which Tenant may sustain or incur
if, during the Lease Term, because of conditions beyond Landlord's control, the quantity or character of
any utility service is changed or is no longer available or suitable for Tenant's requirements. Tenant shall
not be entitled to a claim for constructive eviction or disturbance of right to possess the Premises or an
abatement of any rentals payable hereunder because of the suspension or inadequacy of the utility services
or mechanical systems.
ARTICLE VI
REPAIRS AND MAINTENANCE
Section 6.01. Landlord's Obligation. Landlord shall keep the roof, foundation, exterior walls,
gutters, downspouts, structural columns of the Building in good condition and repair and make such
modifications or replacements thereof as may be necessary or required by law or ordinance. Any such
maintenance, repairs, or replacements to made necessary by any acts, omissions or negligence of Tenant,
its agents,employees or invitees, or by vandalism or burglary to the Premises, shall be paid for by Tenant.
Landlord shall procure a maintenance contract with a licensed contractor for the heating,ventilation and air
conditioning system ("HVAC") including the inspection, change of filters, adjustment of belts and other
maintenance as appears necessary from inspection,at least every six(6)months unless Landlord reasonably
determined that more frequent service is necessary. Within thirty (30) days after written request of
Landlord, Tenant shall reimburse Landlord for fifty percent (50%) of costs incurred by Landlord with
respect to the HVAC maintenance contract and the routine HVAC maintenance and non-routine repair(but
excluding replacement which shall be at Landlord's sole expense). Landlord reserves, with at least forty-
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eight (48)hours' prior written notice to Tenant, the right to re-enter the Premises during regular business
hours,or at any time in the event of a perceived emergency,to inspect the same and also to alter, improve,
or repair the Premises and any portion of the Building, all without abatement of rental, so long as such
improvement or alteration activities do not materially interfere with Tenant's operation.
Section 6.02. Tenant's Obligation. All maintenance, repairs, or replacements relating to the
Premises which are not the obligation of Landlord shall be the obligation of Tenant and shall be made by
Tenant at Tenant's sole cost and expense, and the Premises shall be kept in good repair and order at all
times by Tenant. Tenant's obligation to maintain, repair and replace includes, but is not limited to: all the
interior of the Premises,doors(including plate glass doors),door handles,door hardware,door opening and
closing systems, windows (excluding repair and replacement of seals and glass in windows due to failed
seals which shall be the Landlord's responsibility),window and door frames, all operating devices and all
mechanical equipment(including plumbing, heating and electrical) used in connection with the Premises,
the sewer line from plumbing fixtures in the Premises to the main sewer line of the Building.The covenants
of repair herein by Tenant shall be subject to any warranties of contractors given in connection with the
initial construction of the Premises. Tenant shall replace all broken glass and cracked glass, including plate
glass and any other glass relating to the interior or exterior of the Premises and of the doors therein;
provided, however, Landlord agrees to replace any cracked or broken glass that is caused by any casualty
covered by fire or extended insurance that may be carried by Landlord. Tenant shall be responsible for the
maintenance, repair and replacement as reasonably necessary of all fire extinguishers throughout the
Premises. Landlord makes no representation regarding the equipment described in the foregoing sentence
and Tenant acknowledges that it is taking possession of the same on an as-is basis with all faults.
Section 6.03. Alterations. Tenant shall not paint, decorate, install canopies or awnings, or in
any way change the exterior (or the appearance thereof) of the Premises. No remodeling, additions,
alterations or structural change shall be made in the Premises by Tenant without the prior written consent
of Landlord. Tenant shall have the right,at Tenant's cost,to install all trade fixtures,partitions,equipment
or other changes that it may find necessary to the conduct of Tenant's business. Any such trade fixtures,
partitions and equipment installed within the Premises shall be new or newly reconditioned and shall be
maintained by Tenant at Tenant's expense in good condition and repair, and any non-structural changes
made to the interior of the Premises shall incorporate new materials only unless written consent is otherwise
received from Landlord. All such alterations, changes, partitions, and installations of trade fixtures and
equipment shall be at the cost of Tenant,and Tenant hereby agrees to indemnify and save harmless Landlord
from any and all costs or expenses, including without implied limitation reasonable attorneys' fees, that
Landlord may incur by reason of any claim for labor performed or material furnished or violation of any
federal, state or local statute, regulation, code, ordinance or other law that may arise by reason of the
installation of any fixtures, equipment or partitions by Tenant as herein provided or alterations or
remodeling or any work of any kind. No installation of,repair to,or other activity concerning trade fixtures,
partitions or equipment within or other changes made to the Premises shall: (i)adversely affect the
structural integrity of the roof of the Premises; (ii)impair or affect the condition of the roof or decrease the
roof's useful life; (iii)overload electrical circuits or equipment; (iv)overload or unreasonably burden
plumbing, water or sanitary sewage disposal facilities; (v)overload, unreasonably burden or otherwise
adversely affect heating, air conditioning and other mechanical facilities or equipment; or (vi) adversely
affect any other improvements in the Building. Any and all trade fixtures and equipment installed by Tenant
may be removed by it at the termination of this Lease, provided that Tenant shall not be in default in the
performance of any of Tenant's obligations hereunder, and provided that Tenant shall repair any and all
damage caused to the Premises by the removal of any such trade fixtures and equipment. Landlord's
consent to the plans and specifications,or any work proposed or completed by Tenant,shall not be deemed
a representation or affirmation regarding compliance with any federal, state or local laws, regulations or
ordinances or regarding the suitability of such remodeling, additions, alterations or other changes for
Tenant's intended purposes. In any event, Tenant shall, if requested by Landlord, remove any leasehold
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improvements or non-trade fixtures, repair any damage caused by such removal, and shall surrender the
Premises at the end of the Lease Tenn in good condition and repair,ordinary wear and tear excepted.
Section 6.04. No Lien Clause. No person shall ever be entitled to any lien,directly or indirectly,
derived through or under Tenant, or through or under any act or omission of Tenant, upon the Premises,or
any improvements now or hereafter situated thereon, or upon any insurance policies taken out upon the
Premises, or the proceeds thereof, for or on account of any labor or materials furnished to the Premises, or
for or on account of any matter or thing whatsoever;and nothing in this Lease contained shall be construed
to constitute a consent by Landlord to creation of any lien. In the event that any such lien shall be filed
against the Premises, Tenant shall cause such lien to be released within thirty(30)days after actual notice
of the filing thereof, or shall within such time certify to Landlord that Tenant has a valid defense to such
claim and such lien and furnish to Landlord a bond, in form and content satisfactory to Landlord,
indemnifying Landlord against the foreclosure of such lien. In addition to any other remedy herein granted,
upon failure of Tenant to discharge such lien or to post a bond indemnifying Landlord against foreclosure
of any such lien as above provided, Landlord, after notice to Tenant, may discharge such lien, and all
expenditures and costs incurred thereby, together with an administrative fee equal to ten percent (10%)of
such costs incurred, shall be payable as further rental hereunder at the next rental payment date.
ARTICLE VII
COMMON AREA
Section 7.01. Control of Common Area by Landlord. The Common Area shall at all times be
subject to the exclusive control and management of Landlord,and Landlord shall have the right from time
to time: (i)to establish, modify and enforce rules and regulations,the current version of which applicable
to the Building are attached hereto as Exhibit C, (ii)to cause Tenant's concessionaires and suppliers,
officers, agents, employees and independent contractors so to abide and conform to such rules and
regulations,(iii)to use reasonable efforts to cause customers, invitees and licensees so to abide and conform
to such rules and regulations, (iv)to construct, maintain and operate lighting facilities in and on the
Common Area and to police the same, (v)from time to time to change the area, level, location and
arrangement of parking areas and other facilities located in the Common Area; however, in no event shall
Landlord reduce the current number of parking spaces available for the Building,(vi)to designate parking
by tenants,their officers,agents and employees to an employee parking area,(vii)to close all or any portion
of the Common Area to such extent, if any, as may, in the opinion of Landlord's counsel, be legally
sufficient to prevent a dedication thereof or the accrual of any rights to any person or the public therein,
(viii)to close temporarily any portion of the parking areas or parking facilities, (ix)to discourage non-
customer parking, and(x)to do and perform such other acts in and to the Common Area as, in the use of
good business judgment, Landlord shall determine to be advisable with a view to the improvement of the
convenience and use thereof by tenants,their officers,agents,employees and customers. Notwithstanding
anything to the contrary, Landlord shall be responsible for snow removal from the parking lot and drive
aisles. Landlord will operate and maintain the Common Area in such manner as Landlord, in its sole
discretion, shall determine from time to time. Without limiting the scope of such discretion,Landlord shall
have the full right and authority to employ all personnel and to make all rules and regulations pertaining to
and necessary for the proper operation and maintenance of the Common Area. The costs of maintaining
and operating the Building in accordance with Section 6.01 herein and the Common Area in accordance
with this Section 7.01 shall be referred to collectively as the"Building Maintenance Costs."
Notwithstanding anything to the contrary, Tenant shall be responsible, at its sole expense, (i) to
have at least one(1) police officer on site during all hours when court is in session and not less than one-
half(1/2)hour before and one-half(1/2)hour after such times when the court is in session,(ii)for enforcing
a"no smoking"policy in the Building and Common Areas(which shall include the installation and frequent
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emptying of cigarette receptacles bythe entrances to the Premises), (iii) for removingall trash left in the
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Common Areas by Tenant's invitees, (iv) for preventing any loitering in the Common Areas by Tenant's
invitees and (v) for complying with all laws, codes, ordinances, policies and procedures regarding the
transportation of prisoners.
Section 7.02. License. Tenant shall be permitted to use the Common Area under a non-exclusive
license, and if the amount of the Common Area be diminished, then Landlord shall not be subject to any
liability and Tenant shall not be entitled to any compensation or diminution or abatement of rental, except
as otherwise specifically provided elsewhere herein,and such diminution of the Common Area shall not be
deemed constructive or actual eviction.
ARTICLE VIII
INSURANCE AND INDEMNIFICATION
Section 8.01. Insurance to be Furnished by Tenant. Tenant shall purchase and maintain in force
from the Occupancy Date through the duration of the Lease Term,(a)commercial general liability insurance
insuring against loss, cost and expense by reason of injury to or the death of persons or damage to or the
destruction of property arising out of or in connection with the control, occupancy or use of the Premises
by Tenant, and the outside areas immediately adjoining the Premises, including but not limited to the
sidewalks in front of and in back of the Premises, in an amount not less than One Million Dollars
($1,000,000.00) per occurrence, with a Two Million Dollars ($2,000,000.00) annual aggregate limit, (b)
"all-risk" insurance covering all of Tenant's personal property and tenant improvements located in the
Premises against any peril in an amount not less than their full replacement value, (c) worker's
compensation insurance in accordance with statutorily required amounts, (d) motor vehicle liability
insurance insuring against loss, cost and expense by reason of injury to or the death of persons or damage
to or the destruction of property arising out of or in connection with Tenant's use and/or operation of motor
vehicles at the Building, and(e)such other insurance policies as reasonably required from time-to-time by
Landlord. Tenant shall provide immediate written notice to Landlord in the event of any accident,damage
or injury occurring on or about the Premises.
Section 8.02. Requirements of Policies to be Furnished by Tenant. All such insurance policies
required hereunder shall (i) be carried with an insurance carrier reasonably acceptable to Landlord, (ii)
name Landlord as an additional insured (except for worker's compensation insurance), and (iii) provide
that said insurance shall not be cancelled without thirty (30) days (ten (10) days for non-payment) prior
written notice to Landlord. Prior to the Occupancy Date and upon Landlord's request thereafter, Tenant
shall furnish Landlord with certificates of insurance evidencing such coverage.
Section 8.03. Indemnifications.
(a) Tenant Indemnification. To the fullest extent permitted by law, Tenant shall indemnify,
defend and hold Landlord, its successors, assigns, officers, beneficiaries, members, employees, agents,
lender and attorneys, harmless from and against any loss, liability, cost or expense (including reasonable
attorneys' fees and court costs incurred in the defense thereof) to the extent directly caused by Tenant's
control,use or occupancy of the Premises, including any injuries to persons or damages to property, unless
proximately caused by the negligence or willful misconduct of Landlord.
(b) Landlord Indemnification. To the fullest extent permitted by law, Landlord shall
indemnify, defend and hold Tenant, its successors, assigns, officers, beneficiaries, members, employees,
agents, lender and attorneys, harmless from and against any loss, liability, cost or expense (including
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reasonable attorneys' fees and court costs incurred in the defense thereof) arising out of or in connection
with Landlord's use, occupancy, management or control of the Building, including Landlord's repair and
maintenance obligations pursuant to Section 6.01 above and any injuries to persons or damages to property,
unless proximately caused by the negligence or willful misconduct of Tenant.
Section 8.04. Insurance to be Furnished by Landlord. Landlord shall keep the buildings,
improvements, equipment and facilities in or benefitting the Building(but not the contents thereof or any
personal property or trade or business fixtures of Tenant) and the improvements, equipment and facilities
of Landlord within the Common Area insured, in an amount not less than their full replacement value,
during the Lease Term against loss or damage by fire and other risks as are customarily covered by extended
coverage endorsement in amounts and with insurance carriers or companies decided upon by Landlord
within its commercially reasonable discretion. Landlord shall obtain for the Building and the Common
Area, commercial general liability, rent loss and other insurable risk insurance. The premiums for the
insurance policies described in this Section shall be referred to collectively as the"Insurance Premiums".
Upon Tenant's knowledge of an event of any fire or other casualty, burglary or vandalism,Tenant
shall provide immediate verbal notice,followed by written notice promptly thereafter,to Landlord. Tenant
shall not at any time during the Lease Tenn carry any stock of goods, or do or omit to do anything, in or
about the Premises which will in any way tend to increase the insurance rates upon any part of the Building;
however,Landlord hereby acknowledges and agrees that to Landlord's knowledge, Tenant's approved use
pursuant to Section 4.01 above shall not in any way increase the insurance rates upon any part of the
Building. Tenant shall pay to Landlord forthwith upon demand the entire amount of any increase in
premiums that may be charged during the Lease Term on the amount of insurance to be carried by Landlord
on any part of the Building resulting from the foregoing or from any act or omission of Tenant which shall
increase the insurance rates upon any part of the Building,whether or not Landlord shall have consented to
such act or omission of Tenant. In the event of a dispute with regard to payment of any such increase in
the premiums,a schedule or statement from the company providing the insurance coverage to be maintained
by this Section as to the reason or reasons for such premium increase shall be deemed conclusive.
Section 8.05. Waiver of Subrogation. Landlord and Tenant each hereby waives any and all
rights of recovery against the other, and against any other tenant or occupant of the Building and against
the officers,employees, agents, representatives,customers and business invitees of such other party and of
each such other tenant or occupant of the Building, for loss of or damage to such waiving party or its
property or the property of others under its control,arising from any cause insured against under any policy
of insurance required to be carried by such waiving party pursuant to the provisions of this Lease at the
time of such loss or damage. The foregoing waiver shall be effective whether or not a waiving party actually
obtains and maintains the insurance which such waiving party is required to obtain and maintain pursuant
to this Lease. Landlord and Tenant shall, upon obtaining the policies of insurance which they are required
to maintain hereunder,give notice to their respective insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Lease.
ARTICLE IX
TAXES AND ASSESSMENTS
During the Lease Term, Landlord shall pay all taxes (and charges in lieu of real property taxes),
assessments (general and special), license fees, license taxes and other governmental charges and
surcharges levied upon or with respect to the real property and improvements associated with Building,
including Common Areas, together with the rentable square feet of the building commonly known as 489
Gradle Drive,Cannel,Indiana("Taxes and Assessments"). Tenant shall be solely responsible for,and shall
pay prior to delinquency, all municipal, county, state or federal taxes, levies, assessments (general or
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special), fees and other charges of everykind and nature, assessed duringthe Term against anyleasehold
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interest, leasehold improvements or personal property of any kind owned by Tenant or placed in, upon or
about the Premises by Tenant or upon Tenant's business operations in the Premises. Landlord shall
cooperate with Tenant in Tenant's procurement of a real estate tax exemption for the Premises beginning
with the real estate taxes first becoming a lien in 2021 and payable in 2022 and continuing until the end of
the Term or earlier termination of this Lease. To the extent Tenant is successful in obtaining a real estate
tax exemption,Tenant shall have no obligation to share in the Taxes and Assessments for the Premises.
ARTICLE X
DAMAGE TO PREMISES
In the event the Premises or the Building are damaged as a result of any cause whether or not
covered by fire and extended coverage insurance, Landlord shall forthwith diligently repair the same,
provided the extent of the destruction can be restored within one hundred eighty (180) days. Rent shall
proportionally abate during the time that the Premises or part thereof are unusable because of any such
damage. If such restoration has not been substantially completed within one hundred eighty (180) days,
then Tenant may terminate this Lease upon at least thirty (30) days' written notice to Landlord provided
that the restoration has not been substantially completed prior to such day of termination. In the event the
destruction of the Premises or the Building is to an extent which would require more than one hundred
eighty(180)days to restore,then Landlord shall provide written notice of such facts to Tenant within thirty
(30)days after the occurrence of such damage. Landlord or Tenant shall then have the option to give notice
to the other party at any time within thirty(30) days after receipt of such notice terminating this Lease as
of the date specified in such notice, which termination date shall be no less than thirty (30) and no more
than sixty (60) days after the giving of such notice. In the event of giving such notice, this Lease shall
expire and all interest of the Tenant in the Premises shall terminate on the date so specified in such notice.
If this Lease is not terminated, Landlord, subject to the availability of sufficient insurance proceeds, shall
be required to repair any damage or to replace any panels, decoration, office fixtures, floor covering,
partitions, or any other property, excluding personal property, installed in the Premises by Tenant.
Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation
whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Article occurs during the last twelve (12) months of the Lease Term, or any extension
thereof in which case this Lease shall terminate. In the event of any termination under this Article, both
parties shall be discharged of their obligations thereafter accruing under this Lease and all Rent shall be
adjusted to the date of such termination.
ARTICLE XI
EMINENT DOMAIN
Section 11.01. Condemnation of Premises. Either party may terminate this Lease if the whole or
any material part of the Premises shall be taken or condemned for any public or quasi-public use under
Law,by eminent domain or private purchase in lieu thereof(a"Taking"). Landlord shall also have the right
to terminate this Lease if there is a Taking of any portion of the Building which would leave the remainder
of the Building unsuitable for use in a manner comparable to the Building's use prior to the Taking. In
order to exercise its right to terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within forty-five(45)days after the terminating party first receives
notice of the Taking. Any such termination shall be effective as of the date the physical taking of the
Premises or the portion of the Building occurs. If this Lease is not terminated,the rentable square footage
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of the Premises, the rentable square footage of the Building and Tenant's Proportionate Share shall, if
applicable,be appropriately adjusted. In addition,Rent for any portion of the Premises taken or condemned
shall be abated during the unexpired Term of this Lease effective when the physical taking of the portion
of the Premises occurs.
Section 11.02. Condemnation Award. All compensation awarded or paid for any taking or
acquiring under the power or threat of eminent domain, whether for the whole or a part of the Premises,
Common Area or Building, shall be the sole property of Landlord,whether such damages shall be awarded
as compensation for diminution in the value of the leasehold or to the fee of the Premises or otherwise,and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in and to any and all such
compensation; provided, however, that Landlord shall not be entitled to any award specifically made to
Tenant for the taking of Tenant's trade fixtures, furniture or leasehold improvements to the extent of the
cost to Tenant of said improvements (exclusive of Landlord's contribution), less depreciation computed
from the date of such improvements to expiration of the Lease Term.
ARTICLE XII
ENVIRONMENTAL
Section 12.01. Definitions. As used herein,the term"Hazardous Material"means any hazardous
or toxic substance, material or waste or pollutant or contaminant, including without limitation any
petroleum or crude oil and their derivatives or fractions thereof,which is or becomes regulated by any local
governmental authority,the State of Indiana or the United States Government,including without limitation,
any material regulated under the Comprehensive Environmental Response,Compensation and Liability Act
of 1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Section 6901 et seq.), the Oil Pollution Act of 1990, as amended (33 U.S.C. Section
2701 et seq.), any regulations adopted under these acts, or any other present or future federal, state,county
or local laws or regulations concerning environmental protection.
Section 12.02. Environmental Obligations. Tenant shall not cause,contribute to,allow or permit
any Hazardous Material to be brought upon,generated,manufactured, stored,handled,disposed of or used
at, on, about or beneath the Premises or any portion of the Building by Tenant, its agents, employees,
contractors, invitees, or licensees, without the prior written consent of Landlord. Tenant shall promptly
notify Landlord in writing of any suspected or confirmed release, spill, leasing, or disposal and supply
Landlord with copies of all notices,reports, correspondence and submissions by Tenant to any local, state
or federal authority of any information concerning environmental matters or Hazardous Materials.
Section 12.03. Environmental Indemnification. If Tenant breaches the obligations stated in this
Article, or if the presence of Hazardous Material on the Premises or in the Building caused, contributed to
or permitted by Tenant results in contamination, release, disposal or risk or threat of release or disposal of
Hazardous Material at or from the Premises or Building, or if contamination, release or disposal of
Hazardous Substances at or from the Premises or Building otherwise occurs for which Tenant is legally
liable to the United States, state or local government, a third party or Landlord for damages resulting
therefrom, then Tenant shall indemnify, defend by counsel acceptable to Landlord and save and hold
harmless Landlord,its successors and assigns from any and all claims,judgments,damages,penalties,fines,
costs, liabilities or losses (including, without limitation, diminution in value of the Premises or Building,
damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises or
Building, damages arising from any adverse impact on marketing of space,and sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees)which arise during or after the Term as a result of
such contamination, release, disposal or risk or threat of such release or disposal. This indemnification of
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Landlord by Tenant includes,without limitation,costs incurred in connection with any investigation of site
conditions or any clean-up,remedial,removal or restoration work, including any costs for natural resource
damages and government oversight costs required by any federal, state or local governmental law because
of Hazardous Material present in or any risk or threat of release or disposal to the soil or groundwater on,
under or emanating from the Premises and any attorney fees related thereto. Without limiting the foregoing,
if the presence of any Hazardous Material on the Premises or Building caused or permitted by Tenant results
in any contamination,release or disposal at the Premises or Building,Tenant shall promptly take all actions
at its sole expense as are necessary to return the Premises or Building to the condition existing prior to the
introduction of any such Hazardous Material to the Premises or Building;provided that Landlord's approval
of such actions shall first be obtained, which shall not be unreasonably withheld,delayed or conditioned.
Section 12.04. Survival. The provisions of this Article shall survive,and remain in full force and
effect after,the date hereof and the expiration or earlier termination of the Term.
ARTICLE XIII
SIGNS
Section 13.01. Signage. As a part of Tenant's Work, Tenant shall install an identification sign
reasonably acceptable to Landlord on the entry doors to the Premises and/or upon storefront glass, in a
location approved by Landlord. (the"Sign").
Section 13.02. Design. Tenant shall bear the cost of the initial design of the Sign. Any redesign
shall be done solely at Tenant's expense. The Sign shall be consistent with the other signs within the
Building,and the design shall specify size, layout,and color of letters and method of installation.
Section 13.03. Approval. The final design for the Sign shall be approved in writing by both
Tenant and Landlord promptly after execution of this Lease, and prior to the construction and installation
of the Sign. Landlord reserves the right to disapprove any sign design it feels is inappropriate for any reason
in its sole discretion.The Sign and any additional signage shall comply with all applicable laws,regulations
and ordinances. Tenant shall be solely responsible for the maintenance of,and upon the expiration or earlier
termination of this Lease,the removal of,the Sign and any additional approved signage.
Section 13.04. Installation. Tenant shall be solely responsible for the cost of fabrication,
installation and maintenance of the Sign. Any approved electrical sign wiring must be installed in
accordance with Underwriters Laboratory Rules and Regulations. All primary and secondary wiring
installed through the canopy must be encased in flexible metal conduit or electrical metallic tubing with
proper fasteners. All transformers must be concealed in metal transformer boxes and shall be mechanically
grounded. After installation, Tenant shall maintain the Sign in good condition and repair at all times.
Tenant shall not change its Sign without Landlord's prior written consent and all costs associated with
changing the Sign, including canopy repair, shall be the sole responsibility of Tenant. Tenant shall give
Landlord at least forty-eight(48)hours' notice prior to the date of installation of the Sign.
Section 13.05. Consent as to Other Types of Signing. All signs, lettering,advertising, lighting or
any other things of any kind visible from the exterior of the Premises installed by Tenant shall be first
approved in writing by Landlord and the location and method of installation of the same shall be as designed
or approved by Landlord,which approval shall not be unreasonably withheld, delayed or conditioned.
Section 13.06. Monument Sign. Upon Tenant's review and approval of the design and costs,
Landlord shall, at Tenant's sole expense, have fabricated and installed a panel identifying Tenant on the
Building monument sign located near Gradle Drive. Landlord shall be responsible, subject to
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reimbursement from Tenant as Additional Rent, for the maintenance of the monument sign.
ARTICLE XIV
ASSIGNMENT AND SUBLETTING
Section 14.01. Assignment and Subletting. Tenant shall not assign, sublet, mortgage or transfer
this Lease, or permit the occupancy by licensees, concessionaires or any other party, without the prior
written consent of Landlord, which consent may be granted or denied in Landlord's sole and absolute
discretion. If Tenant is a corporation, limited liability company, partnership or other entity, then the
alienation of fifty percent(50%) or more of the ownership or voting control of such entity or its assets by
its present owner(s)shall be considered an assignment of this Lease and shall constitute a default by Tenant
in Tenant's obligations under this Lease unless the prior written consent of Landlord is obtained. Tenant
shall give Landlord not less than thirty(30)days advance written notice of any proposed transfer.
Section 14.02. Expense. Tenant shall reimburse Landlord for the reasonable time and expense
incurred by Landlord in processing any request of Tenant for approval by Landlord of assignment or
subletting pursuant to this Lease.
ARTICLE XV
DEFAULT AND REMEDIES
Section 15.01. Default of Tenant. Tenant's failure to pay Rent or any other payment required to
be made hereunder and such failure continues for five(5)days after written notice that the payment of Rent
is past due; provided, however, that Landlord shall not be required to provide such notice more than one
time in a twelve-month period and the second instance of Tenant's failure to pay Rent when due during
such twelve-month period shall be an immediate event of default without further notice.
(b) Tenant's failure to perform or observe any other terms, conditions, or covenants of this
Lease to be performed or observed by Tenant, where such failure shall continue for a period of thirty(30)
days(or such additional time as is reasonably required to correct such default,as long as Tenant commences
such cure within such thirty (30) days period and thereafter diligently pursues corrective action for up to
but not in excess of sixty (60)days of such additional time)after written notice thereof from Landlord to
Tenant.
(c) (i)The making by Tenant or Guarantor(s), if any,of any general assignment for the benefit
of creditors;(ii)the filing by or against Tenant of a petition to have Tenant adjudged/adjudicated a"debtor"
or a petition for reorganization or arrangement under any law relating to bankruptcy(unless, in the case of
a petition filed against Tenant, the same is dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in the Lease,where possession is not restored within sixty(60)days;or(iv)the attachment,
execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease,where such seizure is not discharged within sixty(60)days.
Section 15.02. Landlord's Remedies.
(a) Upon any default, Landlord shall have the right without notice or demand (except as
otherwise specifically provided for herein) to pursue any of its rights and remedies at Law or in
equity, including any one or more of the following remedies:
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(I) Terminate this Lease, in which case Tenant shall immediately surrender the Premises
to Landlord. If Tenant fails to surrender the Premises,Landlord may,in compliance with applicable
law and without prejudice to any other right or remedy, enter upon and take possession of the
Premises and expel and remove Tenant,Tenant's Property and any party occupying all or any part
of the Premises. Tenant shall pay Landlord on demand the amount of all past due Rent and other
losses and damages which Landlord may suffer as a result of Tenant's default, whether by
Landlord's inability to relet the Premises on satisfactory terms or otherwise, including, without
limitation, all Costs of Reletting (hereinafter defined) and any deficiency that may arise from
reletting or the failure to relet the Premises. "Costs of Reletting" shall include all costs and
expenses incurred by Landlord in reletting or attempting to relet the Premises, including, without
limitation, reasonable legal fees, brokerage commissions, the cost of alterations and the value of
other concessions or allowances granted to a new tenant.
(2) Terminate Tenant's right to possession of the Premises and, in compliance with
applicable Law, expel and remove Tenant,Tenant's Property and any parties occupying all or any
part of the Premises. Landlord shall make commercially reasonable efforts to relet all or any part
of the Premises,without notice to Tenant,for a term that may be greater or less than the balance of
the Term and on such conditions (which may include concessions, free rent and alterations of the
Premises)and for such uses as Landlord in its reasonable discretion shall determine. Landlord may
collect and receive all rents and other income from the reletting. Tenant shall pay Landlord on
demand all past due Rent, all Costs of Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible or liable for the failure to relet all
or any part of the Premises or for the failure to collect any Rent. The re-entry or taking of possession
of the Premises shall not be construed as an election by Landlord to terminate this Lease unless a
written notice of termination is given to Tenant.
(3) In lieu of calculating damages under Sections 15.02(a)(1) or 15.02(a)(2) above,
Landlord may elect to receive as damages the sum of(a) all Rent accrued through the date of
termination of this Lease or Tenant's right to possession, and(b)an amount equal to the total Rent
that Tenant would have been required to pay for the remainder of the Term discounted to present
value at the Prime Rate(hereinafter defined)then in effect after deducting all anticipated Costs of
Reletting.
(b) Unless expressly provided in this Lease, the Landlord's repossession or re-entering of all
or any part of the Premises shall not relieve Tenant of its liabilities and obligations under the Lease. No
right or remedy of Landlord shall be exclusive of any other right or remedy. Each right and remedy shall
be cumulative and in addition to any other right and remedy now or subsequently available to Landlord at
Law or in equity. If Landlord declares Tenant to be in default,Landlord shall be entitled to receive interest
on any unpaid item of Rent at a rate equal to the Prime Rate plus four percent(4%). For purposes hereof,
the "Prime Rate" shall be the per annum interest rate publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the state in which the Building is located. Forbearance by
Landlord to enforce one or more remedies shall not constitute a waiver of any default.
Section 15.03. Default of Landlord; Tenant's Remedies. Landlord shall in no event be charged
with default in the performance of its obligations under this Lease unless and until Landlord shall have
received written notice from Tenant specifying wherein Landlord has failed to perform any obligation
hereunder,and Landlord shall have failed to perform such obligation,or remedy such default,within thirty
(30)days(or such additional time as is reasonably required to correct any such default,so long as Landlord
is diligently pursuing corrective action) after receipt of such notice from Tenant. Upon the occurrence of
any such default,Tenant may sue for injunctive relief or to recover damages for any loss directly resulting
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from the breach, but Tenant shall not be entitled to terminate this Lease unless such default renders the
Premises untenantable.
Section 15.04. Status of Landlord. Notwithstanding any other provision of this Lease to the
contrary,neither Landlord or any successors of Landlord nor any officer,director,member,manager,agent,
partner or employee of Landlord or any successors of Landlord shall be responsible or liable for the
performance or non-performance of any agreement, covenant, or obligation of Landlord contained in this
Lease in its, his or her individual or personal capacity, and Tenant agrees to look solely to the interest, if
any, of Landlord or any successors of Landlord in fee simple title to the Building as the sole asset for the
payment and satisfaction of all obligations and liabilities of Landlord or the successors of Landlord under
this Lease. Tenant and Tenant's successors and assigns shall not take or seek a personal or deficiency
judgment against Landlord or any successors of Landlord.
Section 15.05. Costs. The prevailing party hereunder shall be entitled to be paid(and indemnified
against) by the other party hereunder all costs and charges, including reasonable attorneys' fees, incurred
by the prevailing party in enforcing any covenant or agreement of the other party contained in this Lease.
Section 15.06. Surrender. At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall (i) remove Tenant's Property which has not become sufficiently annexed to
the Premises to constitute a fixture which cannot be removed without causing material damage to the
Premises;(ii)remove the Sign and repair any damage to the Building caused by such removal;and(iii)quit
and surrender the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary
wear and tear and damage by casualty excepted. The foregoing obligations shall include the removal of all
interior walls installed by Tenant unless Landlord otherwise agrees that such shall not be required to be
removed. If at the expiration or earlier termination of this Lease Landlord agrees that Tenant is not required
to remove the interior walls installed by Tenant, then Tenant shall not be charged for any subsequent
removal of the interior walls by Landlord or any new tenant. If Tenant fails to remove any of Tenant's
Property upon the termination of this Lease or of Tenant's right to possession, Landlord, at Tenant's sole
cost and expense, shall be entitled (but not obligated) to remove and store Tenant's Property. Landlord
shall not be responsible for the value, preservation or safekeeping of Tenant's Property. Tenant shall pay
Landlord, upon demand, the removal expenses and storage charges incurred for Tenant's Property. In
addition, if Tenant fails to remove Tenant's Property from the Premises or storage, as the case may be,
within thirty(30) days after written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately vested in Landlord.
ARTICLE XVI
MISCELLANEOUS
Section 16.01. Subordination. At the option of Landlord,this Lease shall,at all times,be subject,
subordinate and inferior to any mortgage that may be placed on the Premises or the Building. Tenant shall,
upon demand, execute any instrument reasonably necessary to effect the foregoing provision. As a
condition precedent to the effectiveness of the foregoing provisions,however,Landlord shall procure from
the mortgagee under any such mortgage and deliver to Tenant an agreement providing, in substance, that
so long as Tenant shall faithfully discharge the obligations on its part to be kept and performed under the
terms of this Lease, its tenancy will not be disturbed, and its rights hereunder will not be affected, by any
default under any such mortgage, and in the event of the foreclosure or any other enforcement of any such
mortgage,the rights of Tenant hereunder shall expressly survive and this Lease shall continue in full force
and effect; provided, however,Tenant shall agree to attorn to any mortgagee or purchaser at a foreclosure
sale or deed in lieu thereof.
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Section 16.02. Estoppel. Within ten(10)business days after written request of Landlord,Tenant
shall deliver to Landlord, or to any prospective mortgagee of Landlord or any prospective purchaser of
Landlord's interest in the Premises or the Building (any such prospective mortgagee or purchaser is
hereinafter referred to as "Lender"), a statement executed and acknowledged by Tenant, in such form as
Lender reasonably requires, (a) stating the Occupancy Date, the Rent Commencement Date, the date of
expiration of the Lease Tenn,and that this Lease is then in full force and effect and has not been modified
(or if modified, setting forth all modifications), (b) setting forth the date to which the Minimum Annual
Rent and any additional amounts due hereunder have been paid, together with the amount of Minimum
Annual Rent and any additional amounts then payable, (c) stating whether or not, to the best of Tenant's
knowledge, Landlord is in default under this Lease, and, if Landlord is in default,setting forth the specific
nature of all such defaults,(d)stating the amount of the security deposit,if any,under this Lease,(e)stating
whether there are any subleases or assignments affecting the Premises,(f)stating the address of Tenant to
which all notices and communications under the Lease shall be sent,and(g)responding to any other matters
reasonably requested by Landlord or Lender. Tenant acknowledges that any statement delivered pursuant
to this Section may be relied upon by any purchaser or owner of the Premises, the Building, or all or any
portion of Landlord's interest in the Premises or Building; or by any mortgagee or assignee thereof.
Section 16.03. Reserved.
Section 16.04. Reserved.
Section 16.05. Notices. All notices required under this Lease shall be deemed to be properly
served if sent by registered or certified United States mail with return receipt requested,by personal delivery
to an employee of the party to be served, or overnight mail with a responsible company specializing in
overnight delivery,to Landlord and Tenant at the addresses as specified on the first page of this Lease,or
to such other addresses a party hereto may from time to time designate for such party by notice hereunder
to the other party. Notices to Tenant must be sent to the attention of"City Corporate Counsel". Date of
service of a notice served by mail shall be the first business day after the date on which such notice is
deposited with nationally recognized overnight carrier service. Date of service of a notice served by
personal delivery shall be on the date of delivery. Any notice may be given on behalf of any party hereto
by such party's legal counsel.
Section 16.06. Relationship of Parties. Nothing contained herein shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship of principal and agent, or of
partnership, or of joint venture, between the parties hereto.
Section 16.07. Construction. Whenever a word appears herein in its singular form, then such
word shall include the plural and vice versa;and the neuter gender shall include the masculine and feminine
genders and vice versa. Use of the words "including", "such as", or words of similar import, when
following any general term, statement or matter shall not be construed to limit such statement, term or
matter to specific items, whether or not language of non-limitation, such as "without limitation", or"but
not limited to", are used with reference thereto, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest scope of such statement,terms or matter. This Lease
shall be construed without reference to titles of Articles or Sections, which are inserted for reference only.
Section 16.08. Governing Law and Waiver of Jury Trial. This Lease has been executed under and
shall be governed by the laws of the State of Indiana. LANDLORD AND TENANT EACH AGREE TO
AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON
ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY
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OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND ANY STATUTORY
REMEDY.
Section 16.09. Lease Memorandum. This Lease shall not be recorded; however, upon request of
either party or as required by law, Landlord and Tenant shall execute and acknowledge a memorandum or
short-form lease setting forth the parties, description of the Premises, use provisions, the Lease Term and
any other provision hereof,the inclusion of which shall be mutually agreed upon by Landlord and Tenant
and specifically excluding financial terms, which memorandum or short-form lease may be recorded by
either party at any time after the execution of this Lease. Prior to the recording of a memorandum of lease,
Tenant shall deliver to Landlord a memorandum of lease termination executed by Tenant,which Landlord
shall hold in trust pending the expiration or earlier termination of this Lease. Tenant hereby agrees that
Landlord shall have the right to record the termination upon the termination or expiration of this Lease.
Upon request by Landlord, in connection with any future modification of this Lease, the parties hereby
agree to execute a memorandum of lease modification, in a commercially reasonable form, setting forth
such modified terms.
Section 16.10. Force Majeure. Whenever this Lease requires an act(except for the payment of
money) to be performed by a certain time or within a certain period of time, the time for performance of
such act shall be extended by the period of any delays in such performance caused by war, invasion,
hostilities, work stoppages, boycotts, slowdowns, strikes, lockouts, civil commotion, riots, unpreventable
shortages of materials, equipment labor or energy, casualties, acts of God, pandemic, including, without
limitation, the pandemic known as "corona virus" or "COVID-19", or other conditions or events beyond
the control of the party required to perform such act (each, an event of"Force Majeure"). The party
claiming delay due to an event of Force Majeure shall notify the other party in writing or by electronic or
facsimile transmission as soon as possible,but not later than seventy-two(72)hours after the time that party
first knew of,or in the exercise of reasonable diligence under the circumstances should have known of,any
event which constitutes an event of Force Majeure. The written notice submitted pursuant to this paragraph
shall describe in detail the basis for the claiming party's contention that it experienced a Force Majeure
delay,the anticipated length of the delay,the precise cause or causes of the delay,the measures taken or to
be taken to prevent or minimize the delay,and the timetable by which those measures will be implemented.
The claiming party shall adopt all reasonable measures to avoid or minimize such delay. Failure to so
notify the other party shall render this Force Majeure provision void and of no effect as to the event in
question,and shall be a waiver of the claiming party's right to obtain an extension of time for its obligation
based on such event.
Section 16.11. Complete Agreement. This Lease contains a complete expression of the agreement
between the parties and there are no promises, representations or inducements except such as are herein
provided.
Section 16.12. Successors in Interest. Except as assignment and subletting are limited or
prohibited hereunder, the covenants, agreements, terms, conditions and warranties of this Lease shall be
binding upon and inure to the benefit of Landlord and Tenant and their respective successors and assigns,
but shall create no rights in any other person except as may be specifically provided for herein.
Section 16.13. Partial Invalidity. If any Lease provision is invalid or unenforceable to any extent,
then that provision shall be deemed modified to the extent necessary to render that provision enforceable
and the remainder of the Lease shall continue in effect and be enforceable to the fullest extent permitted by
law.
Section 16.14. Quiet Enjoyment. Landlord covenants that Tenant, on paying the Minimum
Annual Rent, together with all other additional rentals and reimbursements herein reserved and payable,
17
and performing the covenants of Tenant hereunder, shall peaceably and quietly have, hold and enjoy the
Premises during the Lease Term. Notwithstanding the foregoing,during the last six(6)months of the Lease
Term,Landlord may,with at least forty-eight(48)hours prior written notice to Tenant,exhibit the Premises
to prospective lessees and place signs advertising the Premises as available for lease provided that such
action does not unreasonably interfere with Tenant's business operations.
Section 16.15. Commissions. Tenant and Landlord represent that they have had no dealings,
negotiations or consultations with any broker, representative, employee, agent or intermediary in
connection with this Lease other than Kevin Dick and Nicholas Miller of Resource Commercial Real Estate
on behalf of Landlord and Tom Osborne and Errick Peck of Resource Commercial Real Estate on behalf
of Tenant. Tenant and Landlord shall indemnify, defend and save harmless each other from loss, damage,
cost or expense, including attorneys' fees, arising out of the claims of any other broker, representative,
employee,agent or other intermediary claiming to have represented Tenant or Landlord or to be entitled to
compensation in connection with this Lease.
Section 16.16. Landlord's Fees. Whenever Tenant requests Landlord to take any action not
required of it hereunder or give any consent required or permitted under this Lease, Tenant will reimburse
Landlord for Landlord's reasonable, out-of-pocket costs payable to third parties and incurred by Landlord
in reviewing the proposed action or consent, including reasonable attorneys',engineers' or architects' fees,
within thirty (30) days after Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents to any such proposed
action.
Section 16.17. Financial Statements. Upon the request of Landlord, Tenant shall promptly
provide Landlord with current financial statements, including a balance sheet and profit and loss statement,
and such other financial information as Landlord may reasonably request.
Section 16.18. Counterparts. This Lease may be executed in one or more counterparts,including by
electronic transmission, each of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same agreement.
[Remainder of this page intentionally left blank;signatures on following page(s)]
K D_(10982330.4).docx
18
The parties have executed this Lease as of the Effective Date.
Landlord:
BFI PROPERTIES, LLC,
an Indi 'tested liability company
By:
Name: Gulf 9(. r v1 pJ
Title: �,)S. be-vh
19
Tenant:
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
By: 1
mes Brainard, Mayor
Date: t-PaC7
By:NaA4 a---- ZAAL
Maryin
m Burke, Member
Date: / --02
By:
Lola . atson, Member
Date: 7 1a- c sJ
ATTEST:
,.1(..e. ie}o-e-,p )r-
Sue Wolfgang, C1
g g�
Date: 7 /Z / zo2 d
EXHIBIT A
Depiction/Outline of Premises
485 GRADLF DRIVE
p. •I 1 "
5.i.. •00
161-1 4 075 SF l
-1 12 Clear S.,itr 3b0 ••
- I r : 17,75.1 JI
16.Clo.►r •a�
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We
44,
.I
i 1 ••
le
.�dc 200
.. ( IP
'i 620 if-
12 .
'Clear ' .,.,..
•
141
VW kn.
-End of Exhibit A-
EXHIBIT B
Legal Description of Building
Tract #1:
Part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East in Clay
Township, Hamilton County, Indiana, described as follows:
Beginning at the Northeast corner of the Northeast Quarter of Section 36, Township 18
North, Range 3 East; thence South 00°00'00' (assumed bearing) on and along the East line of
said Northeast Quarter 1188.00 feet; thence South 89°27'30' West parallel with the North line
of said Northeast Quarter 1191.63 feet to the West line of Third Avenue, SW; thence South
01°07'44' West on and along said West line 638.97 feet; thence South 00°38'00- East on said
West line 291.47 feet; thence South 89°22'00' West 508.20 feet, thence South 00°38'00" East
parallel with the West line of Third Avenue SW; 205.05 feet to a point; continuing thence South
00°38'00' East 223.76 feel; thence North 85°00'00' West 216.98 feet to the TRUE POINT OF
BEGINNING of this description; thence North 85°00'00' West 246.39 feet; thence along the
East right-of-way line of Gradle Drive on a curie have a radius length of 1825.00 feet, the
radius point of which bears North 89°26'45' West; thence Northerly along said right-of-way
178.42 feet; thence North 89°22'00' East 250.00 feet; thence South 00°38'00' East 205.01 feet
deed (South 00°41'45" East 202.46 feet measured) returning to the TRUE POINT OF
BEGINNING,
Tract #2
Part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East in Clay
Township, Hamilton County, Indiana, described as follow:
Commencing at the Northeast corner of the Northeast Quarter of Section 36, Township
18 North, Range 3 East; thence South 00°00'00' (assumed bearing) on the East line of said
Northeast Quarter 1188.00 feet; thence South 89°27'30' West parallel with the North line of
said Northeast Quarter 1191.63 feet to the West line of Third Avenue SW; thence South
01°07'44" West on said West line 638.97 feet; thence South 00°38'00' East on said West Line
291,47 feet; thence South 89°22'00' West 508.20 feet; thence South 00°38'00" East parallel
with the West line of Third Avenue, SW, 205.05 feet to the PLACE OF BEGINNING of the
within described real estate; thence South 00°38'00' East parallel with said 1t,est line of Third
Avenue, SW, 223.76 feet; thence North 85°00'00' West 210.98 feet; thence North 00°41'45"
West 202.46 feet to a point on a line which bears South 89°22'00' West from the place of
beginning, said point being 250.00 feet North 89°22'00' East from the East line of Cradle Drive,
thence North 89°22'00' East on said line 216.16 feet to the PLACE OF BEGINNING.
Subject to highways, rights-of-ways and easements.
-End of Exhibit B-
EXHIBIT C
Rules and Regulations
The following rules and regulations are promulgated.with respect to the use and occupancy by of the
Building and Premises leased by Landlord to Tenant pursuant to the foregoing Lease:
(A) Tenant shall neither advertise any liquidation, auction, fire, going-out-of-business or bankruptcy
sale in any publication, handbill, by any broadcast medium or otherwise, nor conduct any such sale in or
about the Premises;
(B) Tenant shall not vacate or abandon the Premises, allow any waste, damage or nuisance on the
Premises, or use or permit the use of the Premises for any unlawful purpose;
(C) Tenant shall keep the Premises in a careful, safe, clean and proper manner and condition in
accordance with all directions, rules and regulations of the health, fire, building and other offices and
governmental agencies having jurisdiction over the Premises, and shall comply with all laws, ordinances,
rules,regulations,orders and decrees of any governmental entity or personnel now or hereafter affecting or
relating to the Premises or the use thereof;
(D) Tenant shall not display merchandise outside the Premises or in any manner which obstructs access
to the Building, or burn or place outside the Premises garbage, trash, merchandise containers or other
materials incidental to Tenant's business;
(E) Tenant shall store all refuse in containers, if any, provided by Landlord therefore in the location
specified by Landlord and prepared for collection as specified by Landlord; in the event Landlord does not
provide any container, then Tenant shall store all refuse in proper and fireproof containers outside the
Premises in areas designated by Landlord and prepared for collection as specified by Landlord;
(F) Tenant shall not use,or permit the use of,televisions,monitors, projection screens or other similar
devices or equipment in a manner so as to be seen outside the Premises without the prior written consent of
the Landlord;
(G) Tenant shall cause all loading and unloading,deliveries and shipping of all merchandise, inventory,
supplies,fixtures,equipment and furniture and cause the collection of rubbish,only through the rear service
door or other doors of the Premises designated by Landlord and at such times as reasonably designated by
Landlord;
(H) Tenant shall not place or permit to be placed or maintained in or on any portion of the Building
outside the Premises,including but not limited to any exterior doors,walls,roof or windows of the building
constituting part of the Premises,any sign,awning or canopy or other advertising matter and shall not place
or permit to be placed or maintained any decoration, lettering or advertising matter on the glass or any
window or door of the Premises except as provided in the Lease or approved by Landlord in writing; and
Tenant shall maintain any such approved signs,decoration,lettering or advertising matter in good condition,
appearance and repair at all times;
(I) Tenant shall comply with all other reasonable rules and regulations established by Landlord and
provided in writing to Tenant from time to time for the benefit of the Building;
(J) Tenant shall not use the plumbing facilities for any purpose other than for which such facilities
were constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any
breakage,stoppage,or damage resulting from a violation of this provision shall be borne by Tenant;
(K) Tenant shall not unreasonably interfere with the use of the Building by Landlord or others entitled
to the use thereof;
(L) Tenant shall allow no activity to take place on the Premises which shall cause any odor which can
be detected by persons other than those in the Premises. Any necessary venting shall be done by Landlord
and the costs shall be borne by Tenant;
(M) Tenant shall neither solicit business nor distribute any handbills or other advertising matter in the
non-exclusive portions of the Building;
(N) Tenant shall use its best efforts to cause its agents, employees, customers, invitees, licensees and
concessionaires to comply with the reasonable rules and regulations set forth herein and from time to time
established by Landlord for the benefit of the Building;
(0) Tenant shall make arrangements with utility companies to have utility services(other than common
water)turned on at the Premises,shall post any deposits necessary in connection therewith and shall further
notify the utility companies involved that Tenant has sole responsibility for such utility services and that
accounts should be opened in Tenant's name only;
(P) Tenant shall at all times during the term of the Lease maintain the temperature in the Premises
sufficiently high to prevent freezing of water in pipes and fixtures;
(Q) No loudspeaker, television, sound system, CD player, DVD player, phonograph, radio or other
similar equipment or device shall be used in a manner so as to create a distracting noise, or to constitute a
nuisance, to businesses conducted adjacent to or in the neighborhood of the Premises;
(R) No aerial,antenna, loudspeaker, satellite dish, sound amplifier, equipment, displays or advertising
shall be erected on the roof or exterior walls of the Premises, or other areas of the Building, without the
prior written consent of Landlord;
(S) No animal,whether or not a pet,of any kind shall be raised,bred, located or kept on the Premises;
(T) No nail, screw or other fastener shall be put in the walls or woodwork, except in connection with
picture-hanging or except with Landlord's prior consent,which consent shall not be unreasonably withheld,
delayed or conditioned. Upon termination of the Lease, Tenant shall remove all such nails, screws and
fasteners and repair all damage resulting therefrom;
(U) Tenant shall keep all windows, windowsills and window frames of the Premises neat and clean at
all times;
(V) Landlord has designated the Building(including the Premises)as a non-smoking building. Neither
Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the
Premises or Common Areas, except for any Common Areas which have been specifically declared a
designated smoking area by Landlord,nor shall the above parties allow smoke to emanate into the Common
Areas or any other part of the Building. Anyone utilizing any designated smoking area must provide a
smoking receptacle acceptable to Landlord and must keep such area in clean and proper manner and
condition subject to all rules and regulations established from time to time by Landlord.
-End of Exhibit C—
EXHIBIT D
Tenant's Work
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- End of Exhibit D-
2954083-8(10240-0008)