HomeMy WebLinkAboutResolution_BPW_04-07-21-08; Intergovernmental Transfer of Certain Property Interests; 10701 North College Avenue; Carmel Fire Department Lease Agreement; Chief David Haboush, Carmel Fire DepartmentRESOLUTION NO. BPW 04-07-21-08
RESOLUTION OF THE BOARD OF PUBLIC WORKS AND SAFETY
OF THE CITY OF CARMEL, INDIANA
Regarding the Intergovernmental Transfer of Certain Property Interests
The Board of Public Works and Safety (the “Board”) of the City of Carmel, Indiana
the “City”) met at a duly called and authorized meeting of the Board held on the date set
forth below, such meeting being called pursuant to a notice stating the time, place and
purpose of the meeting received by all the Board Members and posted on the City webpage
for the public, and the following resolutions were made, seconded and adopted by majority
of those present at the meeting, which constituted alegal quorum of the Board.
WHEREAS, Clay Township of Hamilton County, Indiana (hereinafter the “Township”)
owns and operates the John W. Hensel Government Center located at 10701 N. College Avenue,
Indianapolis, IN 46280 (the “Township Government Center”); and
WHEREAS, the City, by and through the Board. desires to lease the portion of the
Township Government Center designated as “Suite B” (the “Leased Premises”) for use as
administration offices for the Carmel Fire Department (the “Department”) on the terms contained
in the lease attached hereto as Exhibit “A” (the Lease”); and
WHEREAS, Ind. Code §36-1-11-8 provides that a transfer or exchange of property may
be made between governmental entities upon terms and conditions and for value as agreed upon
by the entities as evidenced by adoption of a substantially identical resolution by each entity.
NOW, THEREFORE, BE IT RESOLVED, by the Board of Public Works and Safety
of the City of Carmel, Indiana as follows:
SECTION 1. The foregoing Recitals are incorporated herein by this reference.
SECTION 2. The Board hereby approves the lease of the Leased Premises to the City
for use by the Department on the terms contained in the Lease.
SECTION 3. James Crider, Director of Administration, is hereby authorized,
empowered and directed to take all action necessary to finalize and
execute the Lease with such changes or revisions thereto as are agreed to
by the office of Corporation Counsel for the City.
SECTION 4. James Crider is further authorized, empowered and directed to take all
action necessary to complete the lease of the Leased Premises by the City
for use by the Department, and all actions heretofore taken regarding the
same are hereby approved and ratified in every way.
SECTION 5. This Resolution shall take effect immediately upon its passage.
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Adopted and approved by the Board of Public Works and Safety on the date indicated
below.
City of Carmel, Indiana
by its Board of Public Works and Safety
James A. Brainard, Mayor
Lori S. Watson, Member
Mary Anne Burke, Member
Attest:
Sue Wolfgang, Clerk
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LEASE AGREEMENT
JOHN W. HENSEL GOVERNMENT CENTER
10701 NORTH COLLEGE AVENUE
between
CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA
AS LANDLORD)
and
CARMEL FIRE DEPARTMENT
AS TENANT)
Effective as of January 1, 2021
FYIJCJU
B
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Table of Contents
Recitals: P.1
Article I Leased Property P.1
Article II Term P.2
Article III Rent P.3
Article IV Use and Operation of Lease Premises P.6
Article V General Covenant Against Liens P.7
Article VI Maintenance, Alterations and Additions P.8
Article VII Insurance P.9
Article VIII Indemnification and Release P.11
Article IX Condemnation and Casualty P.12
Article X Tenant’s Trade Fixtures and Equipment P.13
Article XI Subordination and Non-Disturbance P.14
Article XII Certificates P.14
Article XIII Surrender P.15
Article XIV Events of Default, Remedies P.15
Article XV Notices P.17
Article XVI Limitation Upon Liability P.18
Article XVII Miscellaneous Provisions P.18
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LEASE AGREEMENT
THIS LEASE AGREEMENT (“Lease”) is entered into by Clay Township of Hamilton
County, Indiana (hereinafter referred to as “Township”) by and through its Township Trustee,
and the Carmel Fire Department (hereinafter referred to as “Tenant”) by and through the City of
Carmel Board of Public Works and Safety (the “Board of Works”) as the purchasing agency of
the City of Carmel, Indiana (the “City”).
WITNESSETH:
WHEREAS, the Township is the owner of the real estate, improvements and other
facilities located at 10701 North College Avenue, Indianapolis, Indiana 46280 commonly known
as the John W. Hensel Government Center and more particularly described in Exhibit “A”
attached hereto (the “Government Center”), and desires to lease designated portions of the
Government Center to Tenant for use as administrative offices for the Tenant upon the terms and
conditions set forth herein; and
WHEREAS, the City desires to lease the portion of the Government Center designated
herein as the Leased Premises for Tenant for the purposes stated herein; and
WHEREAS, Ind. Code § 36-1-11-8 authorizes the transfer of property between
governmental entities upon terms and conditions agreed upon by the entities, as evidenced by the
adoption of a substantially identical resolution by each entity; and
WHEREAS, the Board of Clay Township of Hamilton County, IN and the Board of
Works have each adopted substantially identical resolutions agreeing upon the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of their mutual undertakings and covenants, the
Township and City agree as follows:
Article I
Leased Property and Government Center
The Township hereby leases to Tenant and Tenant hereby leases from the Township the
portions of the Government Center designated as “Suite A” and depicted in Exhibit “B” attached
hereto and made a part hereof (the “Leased Premises) consisting of approximately 3,216 square
feet. The Government Center consists of a25,009 square foot building, together with appurtenant
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equipment and mechanical structures, as well as parking lot and landscaping improvements
comprising approximately 2.09 acres of real estate more or less (all of such property and
improvements included in the term “Government Center”). The Lease of the Leased Premises
by Tenant shall also include a non-exclusive license for the use of all hallways, restrooms,
parking areas, exterior walkways, entrances and other public portions of the Government Center
provided for the common or joint use and benefit of the occupants of the Government Center,
and not directly occupied by and allocated to other tenants of the Government Center.
Article II
Term, Possession and Holdover
2.01 Original and Extended Terms. The original term of this Lease (“Original Term”)
shall begin on the date of first occupancy of the Leased Premises by Tenant on January 1, 2021
the “Effective Date”) and shall end on December 31, 2021, or until the new Community Center
and Fire Headquarters located at 210 Veterans Way in the City is completed and ready for
occupancy, whichever is later. Continued occupancy of the Lease Premises after December 31,
2021 shall be on a month-to-month basis prorated as set forth herein. In addition, the City may
extend the Term at the conclusion of the Original Term for up to two (2) consecutive periods of
one (1) year each (each an “Extended Term”), by giving Landlord written notice thereof at least
sixty (60) days prior to the end of the Original Term or any Extended Term. Possession of the
Leased Premises shall be delivered by the Township to Tenant in an “as is” condition except as
otherwise specifically provided herein. In the event Tenant remains in possession of the Leased
Premises after the expiration of the Original Term or any Extended Term without an extension as
provided herein and without the execution of a new Lease, it shall be deemed to be occupying
the Leased Premises as a Tenant from month-to-month 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 Leased Premises after expiration or termination pursuant to
this Section, Tenant shall be required to vacate the Leased Premises upon the thirtieth (30th) day
after the date of a written notice from Township to so vacate.
2.02 Early Termination. Tenant may terminate this Lease at any time prior to the
expiration of the Original or an Extended Term by giving the Township sixty (60) day advance
notice of the same.
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Article III
Rent
3.01Base Rent. Tenant shall pay to the Township throughout the Original Term an
annual fixed base rental at the rate per annum of Sixty Thousand and 00/100 Dollars
60,000.00) (the “Annual Rent”) in equal monthly installments of Five Thousand and 00/100
Dollars ($5,000.00) each with payment due on the first day of each month, in advance. In the
event of the exercise of a second Extended Term, Annual Rent shall be increased at the
commencement of the second Extended Term to reflect the total increase in the Consumer Price
Index for All Urban Consumers (CPI-U) during the initial Extended Term, or the immediately
prior Extended Term. Once adjusted for the increase in CPI-U the recalculated Annual Rent
shall be fixed throughout the second Extended Term and shall be payable in equal monthly
installments. Base Rent for month-to-month tenancy shall be similarly adjusted for the increase
in CPI-U at the outset of month-to-month tenancy.
3.02Additional Tenant Expenses. (a) It is the understanding and agreement of the
parties hereto that this is a “net” lease obligation, whereby Tenant shall bear its proportionate
share of the costs and expenses incurred by the Township to operate the Government Center and
Tenant hereby assumes and agrees to bear its proportionate share of the cost of such obligations
with relation to the Leased Premises and the Government Center, the improvements thereon, and
the appurtenances thereto, and the use, operation and maintenance thereof. In connection
therewith, and without limiting in any way Tenant’s responsibility under this “net” lease, Tenant
shall pay its proportionate share of all utility costs, insurance costs and all other reasonable,
necessary and customary expenses incurred in occupying, operating and managing the Leased
Premises and the Government Center. Such expenses shall include, but not necessarily be
limited to: property management expenses; janitorial expenses and the cost of providing
commercial maintenance service; maintenance expense for parking lots adjacent to or serving the
Government Center; insurance premiums for fire insurance, liability insurance and insurance for
any other risks insured against by the parties as required by this Lease or as reasonably required
or customary in the operation of the Government Center by the Township; property taxes and
assessments on the Government Center (if any); and all reasonable expenses incurred in the
maintenance, upkeep and repair of the Government Center, including building equipment,
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machinery and fixtures, all interior and exterior common areas including walkways, parking
areas, shrubbery and lawns, keeping the same in safe and good repair and condition. Utility
costs shall include all utility expenses or charges incurred on or about the Government Center in
the furnishing of heat, ventilation, air conditioning, water and sewer services, electricity, gas and
other power or fuels, including without limitation the costs of installing any additional power or
other utility service that may be required by Tenant and other tenants at the Government Center;
however, all telecommunications services for the Leased Premises, including the service charges
therefore and installation thereof, shall be at the sole expense of Tenant. The parties agree that
the Township shall be responsible for the provision of all of the foregoing listed services
hereafter “Management Services”) throughout the Original Term and any Extended Term of this
Lease. Tenant’s proportional share of all reasonable costs of whatsoever nature incurred by the
Township to provide Management Services for the Government Center, specifically including
the costs of any property manager employed by the Township to provide the same (all hereafter
Management Costs”), shall be paid to the Township on amonthly basis as billed by the
Township. A typical billing of all annual Management Costs shall be prepared by the Township
in the format attached hereto as Exhibit “C”, with the Tenant substituted for “TriCo” (the prior
tenant of the Leased Premises) and the proportionate amounts appearing in Exhibit “C” for such
expenses (hereby designated as Tenant’sproportionate share) shall be paid by the Tenant in
monthly installments as billed by the Township. At the end of the Original Term and annually
thereafter, the Township shall review all actual expenditures for Management Costs for the prior
lease year, and shall notify the Tenant in writing of the actual expenditures and any amounts
necessary to be paid or refunded to properly cover all Management Costs as provided herein.
Such amount shall be paid or refunded by the proper party no later than thirty (30) days after the
submittal of the Township’s report to Tenant. At the Township’s reasonable discretion, the
annual budget may be revised during the Original Term or any Extended Term of this Lease, and
the remaining monthly installments by the Tenant shall be revised accordingly.
3.03Rental Payments. Rental checks are to be made payable to Clay Township of
Hamilton County, Indiana and shall be payable to the Township at its offices located at 10701 N.
College Avenue, Indianapolis, IN 46280. Rent shall be paid to the Township without notice or
demand, and without deduction or offset, in lawful money of the United States of America,
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forwarded to the person and address indicated above, or to such other person or place as the
Township may designate in writing from time to time. Rental retroactive to the Effective Date
will be paid by Tenant upon approval of this Lease.
3.04Late Payments. Base Rent and Additional Rent (collectively referred to as
Rent”) shall be paid on the first day of each month, commencing on the Effective Date. If the
Rent is not received by Township on the first day of any month during the term of this Lease,
then a late charge of $20.00 per day shall be due from Tenant for each day that the Rent or any
portion thereof is paid late unless waived by the Township.
3.05Review of Management Costs. Tenant shall have the opportunity, upon request,
to receive and review receipts, documents and other evidence of all Management Costs incurred
by the Township and allocated to occupants of the Government Center pursuant to this Lease.
Tenant may, from time to time, request that the Township review any specific item of
Management Costs to determine whether such cost is reasonable in light of current market
circumstances. Nothing contained herein shall serve to reduce or require the reduction of any
Management Cost incurred by the Township, but the parties hereto shall reasonably cooperate to
maintain all Management Costs at reasonable market rates.
3.06Limitation. Township shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of Township’s failure to furnish any of the
foregoing when such failure is caused by inclement weather, accidents, breakage, repairs, labor
disturbances or labor disputes of any character, pandemic or by any other cause beyond the
reasonable control of Township. Township shall not be liable under any circumstances for loss
of or injury to property, however occurring, through or in connection with or incidental to failure
to furnish any of the foregoing.
3.07Security Deposit. As Tenant is a governmental entity, a security deposit is not
required under this Lease.
Article IV
Use and Operation of Leased Premises
4.01Use. Tenant shall use the Leased Premises only for governmental purposes
consistent with Tenant’s statutory authority and applicable governing instruments. It is
understood and agreed that neither Tenant nor its sublessees or assignees shall be permitted to
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take any action or carry on any activity inconsistent with its statutory authority as an Indiana
political subdivision.
4.02Operations and General Conditions of Occupancy. Tenant shall keep the Leased
Premises and the Government Center in a clean, orderly and safe condition at all times. Tenant
shall conduct its own activities in a careful, safe and prudent manner. Tenant shall not (1)
commit or permit waste or damage to the Leased Premises; (2) improperly store any hazardous
materials or otherwise permit or suffer any nuisance or hazardous or unsafe condition to occur or
exist on the Leased Premises; (3) cause or permit any use of the Leased Premises which would
constitute a violation of any ordinance, statute, regulation or order of any governmental
authority.
4.03Reservation of Rights. The Township reserves the right to adopt and promulgate
reasonable rules and regulations, applicable to the use and occupancy of the Leased Premises and
the Government Center consistent with the express purposes set forth herein and from time to
time to amend or supplement said rules and regulations. Tenant agrees to abide by all such rules
and regulations and to use its best efforts to cause its employees, guests and invitees to do the
same.
4.04Encumbrance of Leasehold. Tenant may not mortgage, pledge or otherwise
encumber its interest in this Lease or any sublease of the Leased Premises.
4.05Assignment and Sublease. Tenant may not assign this Lease or sublet the Leased
Premises without the Township’s prior written consent, which may be withheld at the sole
discretion of the Township.
4.06Continuing Obligations of Tenant. It is understood and agreed that any sublease
or assignment entered into by Tenant with the Township’s consent pursuant to this Article shall
be subject to the provisions of this Lease, and that such sublease or assignment shall not effect or
reduce Tenant’s obligations hereunder, which shall continue in full effect as the obligations of a
principal and not as aguarantor or surety, to the same extent as though no assignment or sublease
had been made.
4.07Suspension of Services. The Township reserves the right to suspend service of
the heating, elevators, plumbing, electrical, air conditioning or other mechanical systems in the
Leased Premises and the Government Center, and the sweeping, snow removal and maintenance
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of the common areas when necessary by reason of governmental regulations, civil commotion or
riot, accident or emergency, pandemic or for any other reason beyond the reasonable power or
control of the Township. The Township 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 Original
Term or any Extended Term, because of conditions beyond Township’s reasonable 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 aclaim for constructive eviction or
disturbance of right to possess the Leased Premises or an abatement of any rentals payable
hereunder because of the suspension or inadequacy of the utility services, mechanical systems or
services as provided herein.
4.08Repairs. Repairs, alterations, or improvements to the Leased Premises and the
Government Center which are, in the reasonable judgment of the Township, desirable or
necessary, shall be done, if reasonably possible, outside Tenant’s normal business hours and
shall reasonably accommodate Tenant’s operations. In the event such repairs, alterations, or
improvements are conducted during Tenant’s business operations, Tenant’s rent shall not be
abated during the time period of such repairs, alterations and improvements.
Article V
General Covenant Against Liens
5.01Tenant covenants and agrees that it shall not permit any statement of intention
to hold amechanic’s lien to be filed against the Leased Premises or any part thereof nor against
any interest or estate therein by reason of labor, services or materials claimed to have been
performed or furnished to or for Tenant. Such covenant shall extend and be applicable to all
sublessees and assignees of Tenant. If because of any act or omission of Tenant, its sublessees
or assignees, such statement of intention to hold mechanic’s lien or other lien, charge or order for
the payment of money is filed, the Township at its option may compel the prosecution of an
action for the foreclosure of such lien by the lienor. If any such statement of intention to hold
mechanic’s lien or other lien shall be filed and an action commenced to foreclose such lien,
Tenant, upon demand by the Township, shall cause the lien to be released by the filing of a
written undertaking with a surety company approved by the Court and obtaining an order from
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the Court releasing the property from such lien. Nothing in this Lease shall be deemed or
construed to constitute consent to or request any party for the performance of any labor or
services or the furnishing of any materials for the improvement, alteration and repairing of the
Leased Premises; nor as giving Tenant the right or authority to contract for, authorized or permit
the performance of any labor or services or the furnishings of any material that would permit the
attaching of a valid mechanic’slien.
Article VI
Maintenance, Alterations and Additions
6.01Maintenance. Tenant shall keep the Leased Premises in good order and condition
and shall take all action necessary or appropriate to keep and maintain the Leased Premises in
good order and condition. Except for the Management Services provided for in this Lease, the
Township shall not be liable for any labor, services or materials furnished or to be furnished to
Tenant, or to anyone holding the Leased Premises or any part thereof through or under Tenant.
Tenant further agrees to repair any damage to the Premises or the Building caused by or in
connection with the removal of any articles of personal property, business or trade fixtures,
machinery, equipment, cabinetwork, furniture, moveable partition or permanent improvements
or additions, including without limitation thereto, repairing the floor and patching and painting
the walls where required by Township to Township’s reasonable satisfaction, all at Tenant’s sole
costs and expense. In the event Tenant fails to maintain the Premises in good order and
condition, Township shall give Tenant notice to do such acts as are reasonably required to so
maintain the Leased Premises. In the event Tenant fails to promptly commence such work and
diligently prosecute it to completion, then Township shall have the right to do such acts and
expend such funds at the expense of Tenant as are reasonably required to perform such work.
6.02 Alterations and Additions. If there is no continuing event of default, Tenant may
make additions or improvements to or alterations to the Leased Premises with the written consent
of the Township, which shall not be unreasonably withheld. Each such addition, improvement,
or alteration (i) must not, individually or in the aggregate, substantially lessen the fair market
value of the Leased Premises or materially affect the Leased Premises’ usefulness as set forth in
Article IV hereof, (ii) shall be completed expeditiously in a good and workmanlike manner, and
in compliance with all legal requirements and all insurance requirements, (iii) shall become part
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of the Leased Premises and subject to this Lease. Such alterations and additions shall be subject
to the general covenant against liens set forth in Article V hereof.
6.03Additional Tenant Improvements. Township acknowledges that Tenants use of
the Leased Premises may require the installation of special HVAC equipment and an exterior
electrical generator to ensure the continued use of the backup communications center under
emergency conditions. All such special improvements shall receive the prior approval of the
Township, shall be installed at Tenant’s sole expense and shall be subject to Section 6.04 below.
6.04Ownership of Improvements. All improvements constructed and installed to the
Leased Premises at any time by Tenant, its assignees and sublessees, including plans, drawings,
and related materials shall, unless otherwise provided by written agreement between the
Township and Tenant, become the property of the Township and remain with the Leased
Premises at the expiration or sooner termination of this Lease.
Article VII
Insurance
7.01Township Insurance Coverage. The Township will maintain with insurers
authorized to do business in the State of Indiana and which are well rated by any recognized
national rating organization: (i) fire insurance and insurance with respect to risks from time to
time included under the standard extended coverage endorsement, including vandalism and
malicious mischief, in amounts sufficient to prevent the Township and Tenant from becoming
co-insurers of any loss, but in any event not less than the then full insurable value of the
Government Center as determined from time to time (but not less often then once every two (2)
years) by the insurer or insurers; and (ii) comprehensive general public liability insurance against
claims for bodily injury, death or property damage arising out of the use or occupancy of the
Government Center by the Township in a combined single limit of not less than $1,000,000.
7.02Public Liability Insurance. Tenant shall procure and maintain during the Original
Term and any Extended Term a policy or policies of insurance written by a responsible insurance
company or companies insuring the Tenant and the Township from any and all losses, claims,
demands, or actions for injury to or death of any one or more person in any occurrence arising
from Tenant’s use and operation of the Leased Premises or the Government Center. Such
insurance shall provide for broad form protection with combined single limit coverage of not less
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than $1,000,000 and the total protection under the policies for damage to property may not be
less than $500,000.00. Tenant shall furnish to the Township upon request Certificates of
Insurance evidencing the continuous and uninterrupted existence of the public liability insurance
coverage required by this Section, and Tenant shall be responsible for all the costs thereof.
7.03Policy Terms and Conditions. All insurance policies that the Township must
maintain under this Article shall name it and the Tenant as the insured parties, as their respective
interest may appear. The policies may be carried under blanket policies maintained by the
Township if they comply with the provisions of this Article. The fire policy may provide for the
same deductible amounts, not to exceed $25,000.00, that the Township customarily provides for
in its insurance for similar properties owned or leased by it. The policies shall provide for a
reserved amount with respect to the Leased Premises so as to assure that the amount of insurance
required by Section 7.01(i) will be available notwithstanding any losses with respect to other
property covered by such blanket policies. All policies of insurance that the Township must
maintain under this Lease shall not contain a provision relieving the insurer thereunder of
liability for any loss by reason of the existence of other insurance policies covering the Leased
Premises against the perils involved, regardless of collectability.
7.04Personal Property and Fixtures. Township’s policies as provided herein shall not
cover, and Tenant shall remain responsible for, all of Tenant’s trade and business fixtures and
personal property, and losses related thereto shall be the responsibility of Tenant.
7.05Insurance Certificate. The Township shall deliver to the Tenant upon request,
insurers’ certificates evidencing all insurance that the Township must maintain under this Lease,
and, within thirty (30) days before any such insurance expires, other certificates evidencing its
renewal.
7.06Waiver of Subrogation. Township and Tenant each hereby waive any and all
rights of recovery against the other or against the officers, employees, agents and representatives
of the other, on account of loss or damage occasioned to such waiving party or its property or the
property of others under its control to the extent that such loss or damage is insured against under
any fire and extended coverage insurance policy which either may have in force at the time of
such loss or damage. Tenant shall, upon obtaining the policies of insurance under this Lease,
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give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease
Article VIII
Indemnification and Release
8.01Indemnity by Tenant. Tenant shall indemnify and hold Township harmless from,
and defend Township against any and all claims of liability for any injury or damage to any
person or property whatsoever; (1) occurring in, on or about the Leased Premises or any part
thereof; and (2) occurring in, or about, any facilities (including, without prejudice to the
generality of the term “facilities”, elevators, stairways, passageways, hallways, and parking
areas), the use of which Tenant may have in conjunction with other tenants of the Government
Center, when such injury or damage is caused in part or in whole by the act, neglect, fault or
omission of any duty with respect to the same by Tenant, its agents, contractors, employees or
invitees. Tenant shall further indemnify and hold Township harmless from and against any and
all claims arising from any breach or default in the performance of any obligation on Tenant’s
part to be performed under the terms of this Lease, or arising from any act or negligence of
Tenant, or any of its agents, contractors, employees and from and against all costs, attorney's
fees, expenses and liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. Tenant’s obligation to indemnify shall not include any matter for
which the Township is effectively protected against by insurance. In case any action or
proceeding be brought against Township by reason of any such claim, Tenant, upon notice from
Township, shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Township, provided, however that Tenant shall not be liable for damage or injury occasioned by
the negligence or intentional acts of Township and its designated agents or employees unless
covered by insurance Tenant is required to provide.
8.02Release. The Township and Tenant do each hereby release the other from all
liability for an accident, damage or injury caused to person or property, provided, this release
shall be effective only to the extent that the injured or damaged party is insured against such
injury or damage and only if this Lease shall not adversely affect the right of the injured or
damaged party to recover under such insurance policy.
Article IX
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Condemnation and Casualty
9.01Notice. If there is any damage to or destruction of the Leased Premises or
Government Center, or if any proceedings or negotiations are instituted which do or may result
in a governmental taking of all or any portion of the Government Center, each party will
promptly give notice thereof to the other, describing its nature and extent.
9.02Condemnation. If the entire Government Center, or such portion thereof as will
make the remainder unsuitable for the use permitted by this Lease, is condemned by any legally
constituted authority, or if a conveyance or other acquisition in lieu of such condemnation is
made, then this Lease shall terminate as of the date possession is required by the condemnor. If a
portion of the Government Center is condemned but the remainder is still suitable for the use
permitted by this Lease, this Lease shall not terminate. Tenant hereby assigns to the Township
any award or payment on account of any governmental taking by condemnation which is payable
in connection with the Government Center. All amounts paid pursuant to an agreement with the
condemning authority in connection with any taking shall be deemed to constitute an award on
account of such taking. Tenant agrees that this Lease shall control the rights of both parties in
any such award, and any contrary provision of any present or future law is hereby waived.
9.03Township’s Duty to Restore Damaged Leased Premises. If the Leased Premises
should be damaged by fire or other cause to such an extent that the cost of repair and restoration
would be less than $100,000.00, the Township will promptly commence and complete
restoration of the property.
9.04Destruction. If the Government Center should be damaged or destroyed by fire or
other cause to such an extent that the cost of repair and restoration would exceed $100,000.00,
then the Township shall, utilizing the proceeds of the insurance required to be carried under
Section 7.01 hereof, promptly repair and restore the Government Center to substantially the same
condition it was in prior to the damage or destruction. The Township’sduty to repair and restore
the Government Center, however, shall be limited to the proceeds of the insurance required to be
carried under Section 7.01 hereof. Notwithstanding anything to the contrary contained under this
Lease Agreement, it is specifically acknowledged and understood by Tenant that the Township
shall not, and does not hereby, assume any obligation to expend public funds for the repair or
restoration of the Leased Premises.
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9.05Termination Events. This Lease shall terminate sixty (60) days after the
occurrence of any of the following termination events: (a) restoration cannot be completed
within 365 days after the occurrence; (b) the damage, destruction, or condemnation occurs
during the last year of the initial term or during the last year of any extended term of this Lease
and Tenant does not exercise its right to extend the term (under Article II hereof) then in effect
within ten (10) business days after receipt of written notice of termination from the Township
pursuant to this Section; or (c) within thirty (30) days after the date of the occurrence or
condemnation, if Tenant determines in good faith and notifies the Township that, as a result
thereof, the Leased Premises is no longer suitable for the uses and purposes intended under
Article IV hereof.
Article X
Tenant’s Trade Fixtures and Equipment
10.01All trade fixtures, signs, equipment, furniture, or other personal property
of whatever kind and nature kept or installed on the Leased Premises by Tenant shall not become
the property of the Township or a part of the real estate, no matter how affixed to the Leased
Premises and may be removed by Tenant at any time and from time to time during the entire
term of this Lease. Upon request of Tenant or its sublessees or assignees, the Township shall
execute and deliver any consents or waiver forms submitted by any vendor, lessor or owner of
any trade fixtures, signs, equipment, furniture or other personal property of any kind and
description kept or installed on the Leased Premises setting forth that the Township waives, in
favor of such vendor, lessor or owner, any superior lien, claim, interest or other right therein.
The Township shall further acknowledge that property covered by the consent or waiver is
personal property and is not to become a part of the real estate no matter how affixed thereto, and
that such property may be removed from the Leased Premises by such vendor, lessor or owner at
any time upon default in the terms of any financing arrangements, leases or other similar
documents, free and clear of any claim or lien of the Township.
Article XI
Subordination and Non-Disturbance
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11.01This Lease and all rights of Tenant hereunder are and shall be subject and
subordinate to the lien of any and all mortgages, or consolidated mortgage or mortgages, which
may now or hereafter affect the Leased Premises, or any part thereof, and to all renewals,
modifications, consolidations, replacements, and extensions thereof, subject to the following
conditions. Any mortgage placed upon the Leased Premises shall provide that so long as there is
not outstanding a continuing event of default by Tenant in any term, condition, covenant, or
agreement of this Lease, the leasehold estate of Tenant created hereby and Tenant’s peaceful and
quiet possession of the property shall be undisturbed by any foreclosure of the mortgage.
Article XII
Certificates
12.01Either party shall, without charge, at any time within ten (10) days after the
other’s written request, from time to time, certify by written instrument duly executed and
acknowledged to any actual or proposed mortgagee or purchaser, or any other person specified in
the request, as to the following: (a) whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment; (b) the validity and force and
effect of this Lease, in accordance with its tenor as then constituted; (c) the existence of any
default thereunder; (d) the existence of any offsets, counterclaims, or defenses thereby by the
other party; (e) the commencement and expiration dates of the terms of this Lease; and (f) all
other matters that may reasonably be so requested. Any such certificate may be relied upon by
the party requesting it and any other person to whom it may be exhibited or delivered. The
contents of the certificate shall be binding on the party executing it.
Article XIII
Surrender
13.01Upon the expiration or earlier termination of this Lease, Tenant shall surrender
the Leased Premises to the Township in good order and condition, except for ordinary wear and
tear, and the results of any damage, destruction, or condemnation covered by other provisions of
this Lease. Tenant shall remove from the Leased Premises on or prior to the expiration or earlier
termination all of its property situated thereon and shall repair any damage caused by the
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removal. Any property not so removed after thirty (30) days after expiration or earlier
termination of this Lease shall become the property of the Township.
Article XIV
Events of Default, Remedies
14.01Default. Any of the following occurrences, conditions, or acts shall constitute an
Event of Default” under this Lease: (a) If Tenant defaults when making payment when due of
any Rent as specified in Article III hereof, and the default continues for ten (10) days after the
Township gives written notice to Tenant specifying and demanding that it be cured; or (b)
Tenant defaults in the observance or performance of any other provision of this Lease, and the
default continues for thirty (30) days after the Township has given written notice to Tenant
specifying the default and demanding that it be cured. However, if the default cannot be cured by
the payment of money or cannot with due diligence be wholly cured within such thirty (30) day
period, Tenant may have any longer period that is necessary to cure the default, so long as
Tenant proceeds promptly to cure it within that period, prosecutes the cure to completion with
due diligence, and advises the Township from time to time, upon the Township’s request, of the
actions that Tenant is taking and the progress being made.
14.02Remedies. If there is any Event of Default under this Lease, the Township may,
at its option, in addition to any other remedy or right it has hereunder or by law:
a) Maintain the Lease in full force and effect and recover the rent and other monetary
charges as they become due without terminating Tenant’s right to possession irrespective
of whether Tenant shall have abandoned the Premises. In the event Township elects not
to terminate the Lease, Township shall have the right to attempt to re-let the Leased
Premises at such rent and upon such conditions and for such a term, and to do all acts
necessary to maintain or preserve the Leased Premises as Township deems reasonable
and necessary without being deemed to have elected to terminate the Lease, including
removal of all persons and property from the Leased Premises. In the event any such re-
letting occurs, this Lease shall terminate automatically upon the new Tenant taking
possession of the Premises. Notwithstanding that Township fails to elect to terminate the
Lease initially, Township at any time during the term of this Lease may elect to terminate
this Lease by virtue of such previous default of Tenant.
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b) Terminate the Lease at any time upon the date specified in a notice to Tenant, in
which case Tenant shall immediately surrender possession of the Premises to Township.
In such event Township shall be entitled to recover from Tenant all damages incurred by
Township by reason of Tenant’s default, including without limitation thereto, the
following: (i) the worth at the time of award of any unpaid rent which has been earned at
the time of such termination; plus (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that is proved could have been reasonably
avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rent
for the balance of the term after the time of award exceeds the amount of such rental loss
that is proved could be reasonably avoided; plus (iv) any other amount necessary to
compensate Township for all the detriment proximately caused by Tenant’s failure to
perform its obligations under this Lease or which in the ordinary course of events would
be likely to result there from; plus (v) at Township’s election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by
applicable State law.
14.03Recoverable Damages. In addition to any remedies available under subsections
14.02(a) and (b), Township shall be entitled to recover from Tenant, for any Event of Default, an
amount equal to all reasonable attorneys’ fees and litigation expense incurred by the Township in
connection with obtaining possession of the Leased Premises or enforcing the terms of this
Lease. In addition, Tenant shall also pay damages for expenses incurred by the Township in
connection with (i) removal and storage of Tenant’s or other sublessee’sproperty; (ii) care,
maintenance and repair of the Leased Premises while vacant; (iii) reletting the whole or any part
of the Leased Premises; (iv) repairing, altering, renovating, partitioning, remodeling or otherwise
putting the Lease Premises into conditions acceptable and reasonably necessary to obtain new
lessees; and (v) making all repairs, alterations and improvements required to be made by Tenant
hereunder including performing all covenants of Tenant relating to the condition of the Leased
Premises. The parties acknowledge and agree, however, that Tenant’s liability for the damages
described in (i) through (v) herein, shall not exceed the sum of Seventy-Five Thousand Dollars
75,000.00).
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14.04Default by Township. Township shall not be in default unless Township fails to
perform obligations required of Township within a reasonable time, but in no event later than
thirty (30) days after written notice by Tenant to Township specifying wherein Township has
failed to perform such obligations, provided, however, that if the nature of Township’s obligation
is such that more than thirty (30) days are required for performance, then Township shall not be
in default if Township commences performance within said thirty (30) day period and thereafter
diligently prosecutes the same to completion.
Article XV
Notices
15.01All notices required or permitted to be given hereunder shall be in writing and
delivered either in person or by certified or registered first class prepaid mail, return receipt
requested, at the following addresses or such other addresses as any party may designate in
writing delivered to the other party to this Lease:
If to the Township: With a copy to:
Clay Township Trustee KROGER GARDIS & REGAS
10701 North College Avenue Attention: Brian C. Bosma
Suite B 111 Monument Circle, Suite 900
Indianapolis, Indiana 46280-1089 Indianapolis, Indiana 46204-5125
bcb@kgrlaw.com
If to Tenant: With a copy to:
Carmel Fire Department Office of Corporation Counsel
2 Civic Square City of Carmel, Indiana
Carmel, Indiana, 46032 One Civic Square
Carmel, Indiana 46032
15.02Any notice given in accordance with this Section shall be deemed to have been
duly given or delivered on the date the same is personally delivered to the recipient or received
by the recipient as evidenced by the return receipt.
Article XVI
Limitation Upon Liability
16.01Neither this Lease Agreement, nor any of the acts of the Township or Tenant
hereunder, shall be deemed to create a joint venture, partnership or other arrangement by which
one party might be deemed to be the agent of or vicariously liable for the acts of the other party,
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and each party hereby agrees to indemnify and hold harmless the other party from any loss,
damage, or liability arising vicariously because of the acts of the first party.
Article XVII
Miscellaneous Provisions
17.01Severability. If any provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any other application of such provision
shall not be affected thereby.
17.02Binding Effect. The provisions of this Lease shall be binding upon and inure to
the benefit of both parties and their respective successors and assigns.
17.03Quiet Enjoyment. If Tenant shall perform all of its covenants, agreements and
obligations under this Lease, Tenant shall at all times during the term and any extensions thereof
have the peaceable and quiet enjoyment of the Leased Premises without hindrance from the
Township or any parties lawfully claiming under the Township.
17.04Access. The Township reserves the right to enter the Leased Premises in any
emergency at any time without notice to Tenant. The Township reserves the right to enter the
Leased Premises during regular business hours or at any other reasonable time, and to inspect the
same, as reasonably deemed necessary by the Township. Tenant hereby waives as against the
Township any claim for damage for any injury or inconvenience to or interference with Tenant’s
business, any loss of occupancy or quiet enjoyment of the Leased Premises and any other loss
occasioned thereby.
17.05Headings. The table of contents, articles, and section headings are for
convenience and reference only and shall not be used to limit or otherwise affect the meaning of
any provision of this Lease.
17.06Counterparts. This Lease may be simultaneously executed in two (2) or more
counterparts, each of which shall be deemed a fully enforceable original but all of which together
shall constitute one in the same instrument.
17.07Governing Law. This Lease shall be construed in accordance with and governed
by the laws of the State of Indiana.
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17.08Modification and Amendments. No changes, additions, amendments or
interlineations made to this Lease shall be binding unless made in a written document that is
executed by the Township and Tenant.
17.09Construction. All terms used in this Lease, regardless of the number or gender in
which they are used, shall be deemed and construed to include any other number, singular or
plural, and by other gender, masculine, feminine or neuter, as the context or sense of this Lease
or any section, subsection, or clause herein may require as if such terms had been fully and
properly written in such number or gender.
17.10Non-Waiver. No delay or failure by either party to exercise any right under this
Lease, and no partial or single exercise of that right, shall constitute a waiver of that or any other
right, unless otherwise expressly provided herein.
17.11 Entire Agreement. This Lease supersedes all agreements previously made between
the parties relating to its subject matter. There are no other understandings or agreements
between them.
signature page follows\]
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IN WITNESS WHEREOF, the Township and Tenant have hereunto set their hands, by
authorized signatures, in multiple originals, on the dates set forth below, with the Effective Date
of this Lease being January 1, 2021.
CITY OF CARMEL, INDIANA CLAY TOWNSHIP OF HAMILTON
by and through its Board of Public COUNTY, INDIANA
Works and Safety
BY: BY:
James Brainard, Presiding Officer Doug Callahan, Trustee
Date:
Date: _______________________________
Mary Ann Burke, Member
Date:
Lori S. Watson, Member
Date:
ATTEST:
Sue Wolfgang, Clerk
Date:
This Instrument prepared by: Brian C. Bosma, Kroger Gardis & Regas, LLP, 111 Monument
Circle, Suite 900, Indianapolis, IN 46204-5125.
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4/7/2021
4/7/2021
4/7/2021
4/7/2021
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EXHIBIT “A”
Legal Description of Government Center
Lots 159, 160, 161, 162, 163, 164, 165, 166 and 167 in Section 1, Township 17 North,
Range 4 East in Hamilton County, Indiana.
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EXHIBIT “B”
Depiction of Leased Premises
1
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EXHIBIT “C”
Sample Allocation of Management Expenses
2
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2019 Clay Township Government Center at I 07th Street and College Avenue, Hamilton County Indiana Building Sketch
Trustee 's office
06/20/19
0
Assessor's office
Meeting Room
Carmel Fire
Administration EXHIBIT BDepiction of Leased PremisesDocuSign Envelope ID: E19FA940-71C4-4822-AD9E-F8D3332955FDDocuSign Envelope ID: 40C6EEB0-E3A4-48D7-98E9-C3D54090AF64
. � .: .. _ •�"" ;, . . \ .. \ � ..
Utilities:
Duke
Duke Energy-Station 45
TriCo Reg. Sewer Utility
Canncl ti lilies
Vectren
Ki.J1etrex Energy
Total Utilities:
Cintas
Custodiru1-G, Davis
Ferguson Facilities Supply
Jacob-Dietz Inc.
Ornamental Trec&Sluub
Ra 's Trash Sen�ce
Ray's Trash Sen�ce-Recyding
Scat Pest Control
Total Maintenance/Repair:
. . March 2020 Expenses Billed April 3, 2020 Date of BILLAMT. % of Bill Amount Due
Bill Trustee Fire TriCo Trustee Fire
3/9/20 $2,064.35 64.0% 36.0% 1,321.18
3/9/20 $ 384.77 100% 384.77
3/9/20 $ 189.45 12% 80% 8% 22.73 151.56
3/5/2020 $ 250.89 12% 80% 8% 30.11 200.71
3/16/20 $ 306.54 34.70% 49.70% 15.60% 106.37 152.35
3/13/20 $ 389.03 34.70% 49.70% 15.60% 134.99 193.35
$ 3,585.03 $1,615.38 $ 1,082.74
3/4/20 $ 254.38 65% 35% 165.35
3/27/20 $ 3,360.00 60% 40% 2,016.00
3/20/20 $ 203.99 60% 40% 122.39
3/10/20 $ 520.00 65% 35% 338.00
3/9/20 $ 450.00 80% 20% 360.00
3/30/20 $ 114.33 12% 80% 8% 13.72 91.46
3/30/20 $ 15.93 100% 15.93
3/14/20 $ 250.00 60% 40% 150.00
Jauuru-y $ 9,140.13 $12 719.72
Y-T-D TOTALS $ 17,488.72 $15 439.99
Trustee Fire
TriCo
743.17
15.16
20.07
47.82
60.69
$ 886.91
89.03
1,344.00
81.60
182.00
90.00
9.15
100.00
2,163.99
6,235.32
11,182.00
T1iCo EXHIBIT "C" Sample Allocation of Management ExpensesDocuSign Envelope ID: E19FA940-71C4-4822-AD9E-F8D3332955FDDocuSign Envelope ID: 40C6EEB0-E3A4-48D7-98E9-C3D54090AF64
DocuSign Envelope ID: E19FA940-71C4-4822-AD9E-F8D3332955FDDocuSign Envelope ID: 40C6EEB0-E3A4-48D7-98E9-C3D54090AF64