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HomeMy WebLinkAboutCarmel Dad's Club Lease/City of Carmel AP. PROVED~~ TO FORM 8Y~ . LEASE AGREEMENT (AS AMENDED) THIS LEASE AGREEMENT is made and entered into this 2'" day Of' C1. JA.A 2006, between The Cil)' of Carmel, (hereinafter referred to as "Landlord") and The carm~ (hereinafter referred to as "Tenant"), WITNESSETH: 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: 1. Demised Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon and subject to the terms and provisions of this Lease, the real estate and all improvements on the real estate commonly known as Carmel Clay County Park at 106'h Street and Gray Road, Carmel, Indiana 46033, Hamilton County, State ofIndiana, ("Leased Premises") of which is legally described as follows: Legal descriotion is attached hereto and marked as Exhibit A. 2. Term of the Lease; Condition of Leased Premises; Renewal Option. 2.1 Term. This Lease shall be for an original term of fifty (50 years beginning on ~~ 2006, (the "Commencement Date")and ending at ,2056 (the "Termination Date"), unless sooner terminated in accordance with this Lease. 2.2 Condition of Leased Premises. Tenant accepts the Leased Premises "AS IS" and Landlord shall not be responsible or obligated to perform any alterations or modifications to the Leased Premises for Tenant's intended use. Notwithstanding the foregoing, Landlord shall have the right to enter upon the Leased Premises to make alterations as long as such work does not materially interfere with Tenant's use of the Leased Premises. 2.3 RenewalOptions. Tenant shall have the option to renew this Lease upon expiration of the initial term hereof, provided that Tenant is not in default under the terms of this Lease and this Lease shall be in full force and effect immediately prior to said expiration. In order to exercise this option, Tenant must give Landlord notice in writing at least six (6) months before the expiration of the initial term. Said renewal term shall be for a period of twenty-five (25) years, and shall be under the same terms and conditions as under the initial term, including the annual rental rate for the Leased Premises. 3. Rent and Security Deposit. 3.1 Covenant To Pay Rent. Tenant hereby covenants and agrees to pay to Landlord as rent for the Leased Premises (all of which is collectively referred to as "Rent") all of the following: 3.1.1 Basic Rent. Tenant agrees to pay Landlord a guaranteed minimum rent (sometimes referred to as "Basic Rent") of One and 00/1 00 Dollar ($1.00) per annum, on or before the 1 st day of April of each year during the term of this Lease, or any rental amounts may be prepaid for the entire term in advance, at the option of Ten ant. 3.1.2 Additional Rent. Additional rent (the "Additional Rent") is defined as the amount of any payment referred to as such in any portion of this Lease, which shall include any and all charges or other amounts which Tenant is obligated to pay under this Lease, other than Basic Rent. Additional Rent shall include, without limitation, real estate taxes, if applicable, premiums for insurance required to be obtained by Tenant under this Agreement, Routine Operating Expenses for or attributable to the Leased Premises and other Capital Expenses outlined below. As used herein, the term "Routine Operating Expenses" shall include, without limitation, all expenses for operation, routine repair, and maintenance as necessary to keep the Leased Premises in good order, condition, and repair and in compliance with all laws, codes, ordinances, rules and regulations, including, but not limited to, utility systems and facilities, utility services, security services, and maintenance and repair of the interior and exterior of all improvements on the Leased Premises, facilities, driveways, and parking areas, including trash removal, lighting facilities, landscaped areas, drainage strips, sewer lines. The term "Capital Expenses" shall include the following: any other capital expenditures Tenant solely decides to implement into the Leased Premises, which items shall be the responsibility of Tenant. 3.1.3 Utilities: Tenant shall be solely responsible for and promptly pay its charges for heat, sewer and water, gas electricity or other utilities used or consumed in the Leased Premises including all interior and exterior maintenance and janitorial, however assessed, with respect to its occupancy of the Leased Premises. .Tenant is responsible for obtaining service and paying its utilities directly to the service provider together with all taxes thereon. Landlord shall not be liable in damages or otherwise for any failure or interruption of any utility service or other service furnished to the Leased Premises, and no sucb failure or interruption shall entitle Tenant to terminate this Lease or to withhold, setoff, or abate any sums due hereunder. 3.2 Payment Method. Basic Rent and all Additional Rent as provided for under this Lease shall be paid promptly when due, in cash or by check, in lawful money of the United States of America, without notice or demand and without deduction, diminution, abatement, counterclaim or set-off of any amount or for any reason whatsoever payable to and delivered Landlord. or to such other person and place as may be designated by notice from Landlord to Tenant from time to time. 4. Use, Compliance with Laws. The Leased Premises sball be used by Tenant as a public park and for all youth activities administered by the Carmel Dads' Club. Tenant shall keep the Leased Premises in a clean condition and shall conduct its operations thereon in a safe manner. Tcnant shall limit use of the Leased Premises to the daily period between dawn and sunset. Tenant shall use and maintain the Leased Premises at all times in compliance with all legal requirements and Tenant shall not maintain or permit any nuisance to exist on the Leased Premises and sball not commit waste thereon. Tenant shall not use the Leased Premises or fail to maintain the Leased Premises in any manner constituting a violation of any ordinance, statute, regulation or order of any governmental authority, including, but not limited to, those governing zoning, health, safety and occupational hazards, handicapped access, and pollution and environmental control. S. Alterations to Leased Premises. (a) General Authorization. Landlord hereby expressly grants Tenant the right to make any alterations, additions, or other improvements in or to the Leased Premises. reasonably necessary and useful for the utilization of such Premises in conducting Tenant's youth activities. including though not limited to the right to construct. erect, and maintain structures, facilities, buildings, appliances, equipment, accessories, roads, parking areas, paths and any other improvements and/or land alterations. Tenant shall be permitted or required to remove such alterations or additions upon termination of this Lease, provided that such removal shall not damage the Leased Premises. Tenant shall, at its sole expense and cost, ensure that all alterations and additions, which are made or necessitated by Tenant, are in accordance with all applicable laws, rules, codes, ordinances, and regulations, in a good and workmanlike manner. (b) In recognition of the location of Kingswood subdivision adjacent to the Leased Premises, Tenant agrees not to make any alterations, additions, or other improvements to the Leased Premises otherwise authorized under subparagraph (a) above ("Site Alterations"), other than changes of a de minimis nature, without notice to, and opportunity for consultation with the Kingswood Homeowners Association, Inc. ("KHA"). Tenant will provide KHA with written notice of any proposed Site Alteration at least thirty (30) days before seeking any requisite governmental permits or approvals or commencing work on the Alteration ifno permits or 2 approvals are needed. During the thirty-day notice period, KHA may review Tenant's plans for proposed Site Alterations, consult with Tenant concerning the proposed Site Alterations, and make written objections to the proposed Site Alterations by KHA. KHA shall not make unreasonable objections to a proposed Site Alteration. In event of a failure by Tenant to comply with any condition or obligation contained in or arising under Paragraph 4 or this Paragraph 5, KHA may immediately enforce such condition or obligation in any manner available under law or equity. (c) Indemnity; Liens. Tenant shall indemnify and save harmless Landlord from all costs, losses or expenses, including, without limitation, any and all injuries to persons or property, in connection with or caused by, in whole or in part, the constrUction, installation, operation, maintenance, or existence of any alteration or addition. No person shall be entitled to any lien directly or indirectly derived through or under Tenant or through or under Tenant or by virtue of any act or omission of Tenant upon the Leased Premises for any improvements or fixtures made thereon or installed therein or for or on account of any labor or material furnished to the Leased Premises or for or on account of any matter or thing wbatsoever, and nothing in this Lease contained shall be constrUed to constitute a consent by Landlord to the work perfonned, materials supplied and/or the creation of any lien. In the event that any lien is filed against the Leased Premises, or any part thereof, for work perfonned or claimed to have been done for or material claimed to have been furnished to Tenant, Tenant sball cause such lien to be discharged of record within ninety (90) days after filing by bonding or as provided or required by law. Tenant shall indemnify and save harmless Landlord from all costs, losses, expenses, and attorneys' fees in connection with any such lien. 6. Sllrreoder aod Holdover. Upon the expiration or sooner termination of this Lease, Tenant shall surrender to Landlord the Leased Premises, excepting all property afftxed to the Leased Premises and chosen by Tenant to be removed, in the same condition in whicb Tenant received them, the effects of acts of reasonable wear and tear, God, casualty, insured damage, insurrection, riot or public disorder excepted. As mentioned above, Tenant may upon the expiration of the term remove all ofTenanfs trade fixtures, alterations, and personal property from the Leased Premises. Any damage to the Leased Premises caused by such removal shal] be immediately repaired by Tenant. At Landlord's option, if Tenant fails to remove such trade fixtures, alterations, and personal property within ten (10) days following expiration of the term of this Lease, then they shall be deemed abandoned and may be removed or disposed of by Landlord without liability to Tenant. If, with the consent of Landlord, Tenant remains in possession of any part of the Leased Premises after the expiration of the term of this Lease Term then Tenant shaIl be a Tenant from month to month subject to all of the other applicable covenants, terms and conditions hereof; including the Basic Rent. Such month-tn-month tenancy shall be terminable by either party upon thirty days (30) prior written notice to the other party. 7. Assignment and Sllbletting. Tenant shall not assign, encumber or transfer this Lease in whole or in part, or sublet any part of the Leased Premises, nor grant a license or concession in connection therewith without the prior written consent of Landlord. This.prohibition includes any act which bas the effect of a transfer and which occurs by operation of law. In the event that the Leased Premises or any part thereof are sublet, or this Lease is assigned by Tenant in whole or in part, Tenant's responsibility and obligations under the Lease shall terminate. 8. Maintenance of Leased Premises. During the tenn of this Lease, Tenant shall at its own cost and. expense, maintain in good condition and repair to Landlord's reasonable satisfuction the entire Leased Premises. Tenant shall bear all Routine Operating Expenses. , 9. Insuranee; Indemnity. 9.1 Liability Insurance. At all times Tenant is in possession of the Leased Premises, Tenant shall obtain, maintain, and pay the premiums for a sufftcient comprehensive public liability 3 insurance policy issued by a company acceptable to Landlord insuring Landlord and Teoant against any liability arising out of the ownership, use, occupancy or maintenance of the Leased Premises and all areas appurtenant thereto. If Tenant shall fail to procure and maintain said insurance Landlord may, but shall not be required to, procure and maintain the same, but at the expense of Tenant .Tenimt shall furnish to Landlord a certificate thereof (nr such other document or duplicate policy evidencing such insurance in a form acceptable to Landlord) naming Landlord (and its employees and agents) as an additional insured. 9.2 Property Insurance. Tenant shall obtain and keep in force during the term of this Lease a policy or policies of insurance covering loss or damage to the Leased Premises, in such amount as Tenant, in its discretion, may detennine that adequately insures the Leased Premises and all improvements thereto, providing protection against such perils as Tenant may elect to insure against loss or damage by fire or other casualty or any other peril against which insurance is afforded by a standard casualty policy and extended coverage endorsement. 9.3 Indemnity. Tenant shall indemnifY and hold harmless Landlord from and against any and all claims arising from Tenant's use of the Leased Premises, or from the conduct of Tenant's operations or from any activity, work or things done, permitted or suffered by Tenant in or about the Leased Premises or elsewhere and shall further indemnifY and hold harmless Landlord 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 negligence of Tenant, or any of Tenanrs agents, contractors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against Landlord by reason of any such claim, Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel satisfactory to Landlord. However, Tenant shall not be obligated to indemnifY Landlord under this paragraph if such claim, injury, death. or damage is proximately caused by Landlord's negligence. 10. Damage or Destruction; Obligation to Rebuild. In the event the improvements on the Leased Premises are damaged or destroyed partially or totally, from any cause whatsoever, whether or not such damage or destruction is covered by any insurance required to be maintained under Paragraph 9, then Landlord and Tenant may mutually elect to repair, restore and rebuild the Leased Premises to their condition existing immediately prior to such damage or destruction, in which event this Lease shall continue in full force and effect, or Landlord and Tenant may mutually elect to terminate this Lease. If Landlord and Tenant do not elect to terminate this Lease, then such repair, restoration and rebuilding (all of which are herein called the "repair") shall be commenced within a reasonable time after such damage or . destruction and shall be diligently prosecuted to completion. 11. Events of Default. Any of the following events shall constitute a default hereunder ("Event of Default"): (a) The failure for a period of fifteen (15) days, after receiving written notice from Landlord of any delinquent payment, to pay any installment ofrent when the same becomes due; (b) Tenanrs failure to perform or observe any other covenant, term or condition of this Lease to be performed or observed by Tenant, which failure, if curable, continues for one hundred eighty (180) days after notice thereof is given to Tenant (However, if Tenant undertakes appropriate action to cure such default and such default cannot be cured within the one hundred eighty (180) day time period, Tenant will not be considered in default under this sub-paragraph); . (c) Abandonment of the Leased Premises for a period of one hundred eighty (180) days; 4 (d) If Tenant other than a natural person, the dissolution, whether voluntarily or involuntarily, of such entity or any other termination or suspension of such entity's legal authority to do business in the State ofIndiana. For purposes of this Paragraph II, the term "Tenant" includes any assignee, or subtenant of Tenant. This provision shall not, however, be construed to permit the assignment of this Lease, nor the subletting of the Leased Premises, except as may otherwise be permitted hereby. 12. Landlord's Remedies. Upon the occurrence of any Event of Default, Landlord may, at its option, in addition to any other remedy or right it has hereunder, at law or equity: (a) Re-enter the Leased Premises, without demand or notice, and resume possession by an action in law or equity or by force or otherwise and without being liable in trespass or for any damages and without terminating this Lease. Landlord may remove all persons and propetty from the Leased Premises and such propetty may be removed and stored at the cost of Tenant. (b) Terminate this Lease at any time upon the date specified in a notice to Tenant. Tenant's liability for damages shall survive such termination. The remedies provided herein are cumulative imd the resort to anyone does not constitute an election or prevent Landlord from pursuing any other remedy. The failure of Landlord to exercise any option herein provided on account of any default shall not constitute a waiver of the same or any subsequent default, and no waiver of any condition or covenant of this Lease shall be deemed to constitute a waiver of any default for the same or any other condition or Covenant. 13. Advances and Interest. Upon the occurrence of any Event of Default, Landlord may, ifsuch default has not been cured within the grace period provided in Paragraph II, cure that default for the account and at the expense of Tenant. If Landlord in curing such default is compelled to payor elects to pay any sum of money or do any acts that will require the payment of any sum of money the sum so paid or incurred shall be reimbursed by Tenant upon demand by Landlord. 14. Access by Landlord 10 Leased Premises. Landlord, its agents and invitees, prospective Tenants, purchasers or mortgagees may inspect and examine the Leased Premises at all reasonable times and shall have the right, but nol the obligation except as otherwise provided herein, to make any repairs to the Leased Premises which are necessary for its preservation, and any repairs made by Landlord which are the obligation of Tenant under this Lease shall be al Tenant's expense. No such entry shall be deemed an eviction of Tenant or entitle Tenant to setoff or abate any rent by reason thereof. 15. Quiet Enjoyment. If Tenant performs all of the covenants and agreements herein provided to be performed on Tenant's part, Tenant shall, at all times during the term, have the peaceable and quiet enjoyment of possession of the Leased Premises without any manner of hindrance from Landlord or any parties lawfully claiming under Landlord and Landlord shall pay all assessments levied against the Leased Premises. 16. Compliance with Environmental Laws 16.1 Environmental Protection Laws. For purposes of this Lease, the term "hazardous material" means any explosives. radioactive material, hazardous wastes, or hazardous substances, including without limitation substances defined as "hazardous substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended; Hazardous Materials Transpor:tation Act of 1975, as amended; the Resource Conservation and Recovery Act of 1976, as amended; or any other federal, state, or local statute, law, ordinance, code, rule, regulation, order, or decree, relating to, or imposing liability or standards of conduct concerning 5 hazardous materials, waste, or substances now or at any time hereinafter in effect (collectively, "Hazardous Materials Laws"). . 16.2 Hazardous Substance Licenses. Tenant will not cause or permit the storage, use, generation, or disposition of any hazardous materials in, on, or about the Leased Premises or the project, by Tenant, its agents, employees, or contractors. Tenant will not permit the Leased Premises to be used or operated in any manner that may cause the Leased Preinises or the project to be contaminated by any hazardous materials in violation of any Hazardous Materials Laws. Tenant will immediately advise the Landlord in writing of (I) any and all enforcement, cleanup, remedial, removal, or other governmental or regulatory actions instituted, completed, or threatened pursuant to any Hazardous Materials Laws relating to any hazardous materials affecting the premises; and (2) all claims made or threatened by any third party against Tenant, Landlord, or the Leased Premises relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from any hazardous materials on or about the Leased Premises. Without Landlord's prior written consent, Tenant will not take any remedial action or enter into any agreements or settlements in response to the presence of any hazardous materials in, on or about the Leased Premises. 16.3 Indemnification of Laodlord. Tenant will be solely responsible for and will defend, indemnify and hold Landlord, its agents, and employees harmless from and against all claims, costs, and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with Tenant's breach of its obligations on this Article 16. Tenant will be solely responsible for and will defend, indemnify, and hold Landlord, its agents, and employees harmless from and against any and all claims, costs, and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the removal, cleanup, and restoration work and materials necessary to return the Leased Premises and any other properly or whatever nature located on the project to their condition existing prior to the appearance of Tenant's hazardous materials on the premises. Tenant's obligations under this Article 16 will survive the expiration or termination of this Lease. "Tenant's hazardous materials" are hazardous materials as defined by Paragraph 16.1 of this Lease which Tenant has caused or permitted to be stored, generated or disposed of in or on the Leased Premises in violation of any Hazardous Materials Laws. 16.4 Inspection. Landlord and its agents shall have the right, but not the duty, to inspect the Leased Premises and conduct tests thereon at any time to determine whether or the extent to which there are hazardous materials on the Leased Premises. Landlord shall have the right to immediately enter upon the Leased Premises to remedy any contamination found thereon. In exercising its rights herein, Landlord shall use reasonable efforts to minimize. interference with Tenant's operations, but such entry shall not constitute an eviction of Ten ant, in whole or in part, and Landlord shall not be liable for any interference, loss or damage to Tenant's property or business caused thereby. I f any lender or governmental agency shall ever require testing to ascertain whether there has been a release of hazardous materials, then, if such requirement arose in whole because of Tenant's use of the Leased Premises, the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as Additionitl Renl Tenant shall execute such affidavits, representations, and the like from time to time, at Landlord's request, concerning Tenant's best knowledge and belief regarding the presence of any hazardous materials on the Leased Premises and/or Tenant's intent to store or use hazardous materials on the Leased Premises. Tenant shall indemnify and hold harmless Landlord from any and all claims, loss, liability, costs, expenses and damage, including reasonable attorneys' fees and costs of remediation incurred by Landlord in connection with any breach by Tenant of its obligations under this Article 16. . 6 17. Access 10 Leased Premises. Landlord for itself and its successors and assigns hereby covenants that it shall maintain adequate roads over the adjoining real estale owned by it so as to permit Tenant and its invitees free public access to the Leased Premises at all times. 18. General Agreement of Parties. (a) Severability. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid, unenforceable or violate a party's legal rights, then such term, covenant, condition or provision shall be deemed to be null and void and unenforceable; provided, however, all other provisions of this Lease, or the application of such term or provision to persons or circumstances other than those which are held invalid, unenforceable or violative oflegal rights, shall not be affected thereby, and each and every other term, condition, covenant and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. (b) Time. Time is of the essence. (c) Captions. The captions of this Lease are for convenience only and do not in any way limit or amplilY the terms and provisions of this Lease. (d) Incorporation of Prior Agreements; Amendments. This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. (e) Notices. Any notices to be given hereunder shall be deemed sufficiently given when in writing and (a) actually served on the party to be notified or (b) placed in an envelope directed to the party to be notified at the following addresses and deposited in the United States mail by certified or registered mail, postage prepaid: I. if to Landlord, at: City of Carmel I Civic Sq., 3"' Floor Carmel, Indiana 46032 Attn: Doug Haney, City Attorney 2. if to Tenant, at: Carmel Dads' Club 5459 E. 131" Street Carmel, Indiana 46033 Attn: Brad Little, E~ecutive Director 3. if to KHA. at: Kingswood Homeowners Association. Inc. P.O. Box 234 Carmel, Indiana 46082 Such addresses may be changed by either party by written notice as to the new address given as above provided. (I) Waivers. No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Tenant of the same or any other provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent act by Tenant. The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of any provision hereof, other than the tailure of Tenant to pay the particular rent so accepted, regardless 7 / Approved by the Board of Public Works and Safely of the City of Carmel, Indiana, this ~ day of _ ,2006.