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HomeMy WebLinkAboutSpecialty Lease-Storage - CLAY TERRACE_Lit Fireworks_New.pdfDeal ID: WPG-072996 1 SPECIALTY LEASE AGREEMENT (Storage-Tenant/Licensee) CLAY TERRACE 14390 CLAY TERRACE BLVD. CARMEL, INDIANA 46032 This SPECIALTY LEASE AGREEMENT (this “Lease”) made as of , (the “Effective Date”) by and between the parties identified in Section 1 as Landlord and Tenant, also referred to as a “Party” and collectively, the “Parties”. In consideration of the payments of the Rent, charges and fees provided for herein and the covenants and conditions hereinafter set forth, Landlord and Tenant hereby covenant and agree as follows: 1. PARTIES. LANDLORD: TENANT: CLAY TERRACE PARTNERS, LLC CLAY TERRACE (“Center”) 14390 CLAY TERRACE BLVD. CARMEL, INDIANA 46032 LIT FIREWORKS, LLC D.B.A. LIT FIREWORKS 653 FLORENCE DRIVE GREENFIELD, IN 46140 Email: Attn: TODD DENNING (317) 301-6424 2. LEASED PREMISES. Space: Approximate Square Footage: Description: Parking Lot Landlord hereby leases to Tenant, for the Lease Term, the Premises defined above and located in the Center at the location shown on Exhibit “A” attached hereto and forming part of this Lease, for the purpose of occupying and using the Premises, subject to all the terms and conditions set forth herein. Tenant accepts the Premises “as-is” and without warranty or representation. Landlord has made no representation or warranty as to the fitness of the Premises for any specific use, including the Permitted Use. Tenant shall not require Landlord to make any changes to the Premises to accommodate the Permitted Use. The Parties acknowledge that this Lease is short- term, and that all terms and conditions of this Lease reflect a short-term leasehold agreement between the Parties. Tenant agrees to strictly adhere to the rules, regulations and policies for the Center adopted by Landlord from time to time. 3. TERM AND TERMINATION. Commencement Date: 05/29/2023 Expiration Date: 07/06/2023 3.1 The term (the “Lease Term”) of this Lease shall commence upon the Commencement Date, and shall expire at 11:59 p.m. on the Expiration Date. 3.2 Notwithstanding the foregoing to the contrary, Landlord may terminate this Lease upon twenty four (24) hours’ notice to Tenant delivered to Tenant’s address set forth in Section 1. Notwithstanding anything to the contrary, in the event Tenant is in Default of this Lease beyond applicable notice and cure periods, if any, Landlord may terminate this Lease at any time upon three (3) days’ notice delivered to Tenant's address set forth in Section 1. 4. PERMITTED USE. Tenant may use the Premises for the purpose of storing non-perishable merchandise, items or goods. Tenant shall not use the Premises for any other purpose without the prior written consent of Landlord. 5. RENT AND PAYMENT 5.1 During the Term, Tenant shall pay to Landlord rent (“Rent”) for the Premises, without demand, deduction, set-off or counterclaim, in one (1) or more installments, in advance, pursuant to following schedule: Due Date Rent Estimated Tax* Total Due 05/29/2023 $ 500.00 $0.00 $500.00 Overall Total: $500.00 *TAX RATES ARE SUBJECT TO CHANGE BY THE APPLICABLE TAXING AUTHORITY. 5.2 Method of Payment. Tenant shall pay Minimum Rent, Overage Rent, and other fees (collectively, “Rent”) as directed by Landlord by way of Landlord’s electronic payment system (“Electronic Payment System”), unless otherwise designated by Landlord. Within five (5) days after the Effective Date, Landlord shall provide to Tenant instructions for accessing the Electronic Payment System via email and prompt notice of any changes to it. Tenant’s inability to access the Electronic Payment System in no way limits Tenant’s obligation to pay Rent. If Tenant is unable to access the Electronic Payment System for any reason, Tenant may contact Landlord for assistance through the Center Management Office. MAKE CHECKS PAYABLE TO: Clay Terrace Partners, LLC MAIL PAYMENTS TO: Clay Terrace c/o wpg Attn: Specialty Leasing 180 East Broad St, Floor 21 Columbus, Ohio 43215 DocuSign Envelope ID: 651D6E7D-6A2C-4CDA-9431-2256B819ADF0 5/22/2023 Deal ID: WPG-072996 2 5.3 Late Payment and Returned Checks. If Tenant is late in making any payment of Rent to Landlord, Landlord may impose a late fee or fees, fine or fines, upon Tenant in Landlord’s sole discretion. Tenant is required to pay a service charge to Landlord of $30.00 for each returned check. 5.4 Taxes. Tenant shall pay to Landlord any and all governmental or quasi-governmental taxes or charges (other than income tax), based in whole or in part, on the Rent or other charges to be paid under this Lease, as may be in effect during the Term at the then- current rate set by the applicable taxing authority. Tenant understands that tax rates are subject to change and the tax amount charged to Tenant by Landlord will be adjusted accordingly. 6. INSURANCE 6.1 Required Coverage. Tenant shall carry, at its sole cost and expense, throughout the Lease Term, insurance providing as follows: (a) special perils "all-risk" property coverage on Tenant’s personal property of whatever type (furniture, fixtures, carpets, improvements and betterments, equipment, inventory, stock in trade and goods) that is placed in the Premises covering the property on a full replacement cost basis; (b) commercial general liability insurance covering the Premises and Tenant's Permitted Use of the Premises with a minimum coverage of $2,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property damage, including loss of use; and (c) workers’ compensation insurance as to comply with the laws and regulations of the state in which the Premises is located, and Tenant shall provide Landlord with a certificate of insurance evidencing coverage currently in force. Tenant’s insurance policies (“Tenant Policies”), shall be written with insurers licensed to do business in the state in which the Center is located, shall be in a form satisfactory to Landlord, and shall carry an A.M. Best rating of at least A-. With the exception of Workers Compensation, Tenant Policies shall name Landlord as an additional insured and shall be endorsed to provide Landlord with no less than thirty (30) days prior written notice from Tenant’s insurance carrier of cancellation or non-renewal. Tenant Policies shall also reflect that in the event that coverage benefiting Landlord exists under both Landlord’s policies and Tenant Policies, coverage under Tenant Policies shall be primary and non-contributory. The above coverage may be achieved using both umbrella and primary insurance policies. 6.2 Certificates. Tenant shall provide Landlord with a certificate of insurance (ACORD 25) prior to the date of occupancy by Tenant; and, within thirty (30) days of each anniversary of Tenant’s providing such proof of insurance, Tenant shall provide an additional certificate of insurance to Landlord evidencing the above-required coverages. 7. MUTUAL WAIVER OF SUBROGATION. Landlord and Tenant each waive all claims against each other, and shall cause their insurers to waive all rights of subrogation against the other, its officers, directors, employees and agents, mortgagees and ground lessor(s), from any and all loss, damages or liability covered under any policy of insurance required to be maintained by this Lease, including deductibles or retentions, notwithstanding that such loss, damages or liability may have arisen from the negligence, tortious act or omission of the other party, or anyone for whom such party may be responsible. 8. WAIVER OF LIABILITY. Landlord and Landlord’s property manager, each of their affiliates and subsidiaries, officers, directors, employees, agents, successors, assigns, and any mortgagee and master lessor of the Center (“Landlord Parties”) shall not be liable for, and Tenant waives all claims for loss or damage, including, but not limited to, consequential damages to person, property or otherwise, sustained by Tenant or any person claiming through Tenant, in or upon the Premises, or any other part of the Center. There shall be absolutely no personal liability of Landlord with respect to this Lease. If a breach by Landlord occurs, Tenant shall look solely to the equity of Landlord in the Center for the satisfaction of Tenant's remedies. 9. INDEMNIFICATION BY TENANT. To the fullest extent permitted by law, Tenant hereby indemnifies Landlord and agrees to hold harmless and to defend Landlord and the Landlord Parties, from and against all claims, losses, liabilities, damages, penalties, fines and expenses (including but not limited to attorneys' fees) that arise from or in connection with the use of the Premises, or any portion thereof by the Tenant, its employees, agents, contractors, licensees, invitees, successor and assigns, if any. 10. PERMITS AND COMPLIANCE. 10.1 Permits. Tenant shall obtain, at its sole cost and expense, any licenses, authorizations, or permits required by any government agency or authority for the Permitted Use and for any type of activity to be carried on at the Premises (collectively, “Tenant Licenses”). Tenant represents that it has, or shall obtain prior to the Commencement Date, all Tenant Licenses, and any sales, use, and other federal, state, county or local tax permits required with respect to the Permitted Use to be conducted at the Premises. 10.2 Compliance. Tenant shall, at its own cost and expense, comply with all laws, orders, ordinances and with directions of public officers thereunder, with all applicable Board of Fire Insurance Underwriters regulations, and with all other requirements and notices from Landlord or it's mortgagee, respecting all matters of occupancy, condition or maintenance of the Premises, whether such orders or directions shall be directed to Tenant or Landlord, and Tenant shall hold Landlord harmless from any and all costs or expenses on account thereof. Tenant shall comply with general Center Rules and Regulations in effect from time to time; not engage in any unlawful activities; and not consume serve or sell alcoholic beverages on or from the Premises. 11. MAINTENANCE OF PREMISES. Tenant shall maintain the Premises, at its sole cost and expense, in good, clean and safe condition. Tenant shall make all necessary replacements and repairs to the Premises except for structural repairs. Tenant shall not scratch or mar, or otherwise damage, the floors, carpet, walls and ceiling of the Premises. 12. HAZARDOUS MATERIALS. Tenant shall not cause or permit any hazardous material to be brought upon, stored, kept, used, or discharged on or about the Premises. 13. DAMAGE AND ALTERATIONS TO PREMISES. Tenant shall not make any alterations to Premises. Tenant is liable for all damages to the Premises and to the Center caused by Tenant, its employees, agents, invitees, successors or assigns. Upon demand, DocuSign Envelope ID: 651D6E7D-6A2C-4CDA-9431-2256B819ADF0 Deal ID: WPG-072996 3 Tenant shall reimburse Landlord for the cost of the repair of the Premises (inclusive of Landlord units and equipment), or any other damage elsewhere in the Center, caused by or arising from the Tenant’s use of the Premises, including installation or removal of Tenant’s property in or from the Premises during the Lease Term and upon the expiration or earlier termination of this Lease. 14. RELOCATION. Landlord shall have the right, for any reason and at any time, to require Tenant to relocate to another space at the Center (the “New Location”) at Tenant’s sole cost and expense. Landlord shall provide Tenant at least thirty (30) days’ prior written notice of relocation (“Relocation Notice”) and shall specify the date of relocation (“Relocation Date”) in Relocation Notice. Tenant shall surrender the Premises on the Relocation Date. The New Location shall be subject to the same terms, conditions and covenants as the Premises. The Parties agree to promptly execute an amendment to this Lease reflecting such relocation. If Tenant elects not to relocate as requested, Tenant shall notify Landlord within thirty (30) days of receipt of the Relocation Notice and this Lease shall terminate on the Relocation Date 15. DEFAULT. The failure of Tenant to fulfill or perform any obligation, term or condition of this Lease shall be a default (“Default”). If Tenant is in Default, Landlord may pursue such remedy as is provided for in Section 3 of this Lease, and Landlord may pursue any other remedy or remedies available to Landlord at law or in equity. Landlord shall not, under any circumstances, be obligated to accept any rental payments and/or to allow Tenant to cure any Default hereunder. Landlord may pursue any damages (including, but not limited to Landlord’s reasonable attorney fees and legal costs and expenses) and/or loss of rent (such loss of rent to be measured by the unpaid rents and other charges due under this Lease over the full term hereof) sustained by Landlord as a result of Tenant's Default under this Lease. Without limiting Landlord’s rights and damages under the terms of this Lease or applicable law, if Landlord exercises its right to recover possession of the Premises, the Parties specifically agree and acknowledge that Landlord shall be entitled to recover from Tenant monetary damages equal to Landlord’s costs in facilitating such recovery. 16. DELIVERY OF PREMISES UPON TERMINATION. On the expiration or earlier termination of this Lease, Tenant shall remove its goods and effects, fully restore the Premises to at least the condition prior to Tenant’s taking possession, including repairing any damage caused by such removal, vacate and peaceably yield up the Premises in broom-clean condition. Personal property of Tenant not removed within two (2) days of such termination or earlier revocation shall become the property of Landlord, at Landlord's option, without liability to Tenant therefor. 17. HOLDING OVER. If Tenant shall hold possession of the Premises after the expiration of the Lease Term or termination of this Lease, at Landlord’s option (i) Tenant shall be deemed to be occupying the Premises as a holdover tenant and agrees to pay Landlord for such period at double the highest Rent in effect during the Lease Term or any extensions thereof, and otherwise subject to all of the terms and conditions of this Lease, or (ii) Landlord may exercise any other remedies it has under this Lease, at law or in equity including an action for wrongfully holding over. 18. NO LIENS 18.1 Tenant shall not suffer any mechanics' or materialmen's lien to be filed against the Premises or the Center by reason of work, labor, services or materials performed or furnished to Tenant or anyone holding any part of the Premises under Tenant. If any such lien shall at any time be filed as aforesaid, Tenant may contest the same in good faith, but, notwithstanding such contest, Tenant shall, within fifteen (15) days after the filing thereof, cause such lien to be released of record by payment, bond, order of a court of competent jurisdiction, or otherwise. In the event of Tenant's failure to release of record any such lien within the aforesaid period, Landlord may remove said lien by paying the full amount thereof or by bonding or in any other manner Landlord deems appropriate, without investigating the validity thereof, and irrespective of the fact that Tenant may contest the propriety or the amount thereof, and Tenant, upon demand, shall pay Landlord the amount so paid out by Landlord in connection with the discharge of said lien, together with interest thereon at the rate of twelve percent (12%) per annum and reasonable expenses incurred in connection therewith, including reasonable attorneys' fees, which amounts are due and payable to Landlord as additional rent on the first day of the next following month. Landlord shall have the right to deduct the expenses incurred by Landlord pursuant to this Section 18 from Construction Allowance towards Tenant's work at the Premises, if any. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to subject Landlord's estate in the Premises to any lien or liability under the lien laws of the State where the Center is located. Tenant's obligation to observe and perform any of the provisions of this Section 18 shall survive the expiration of the Lease Term or the earlier termination of this Lease. 18.2 Tenant shall not create or suffer to be created a security interest or other lien against any improvements, additions or other construction made by Tenant in or to the Premises or against any equipment or fixtures installed by Tenant therein (other than Tenant's property), and should any security interest be created in breach of the foregoing, Landlord shall be entitled to discharge the same by exercising the rights and remedies afforded it under Section 18.1. 18.3 FOR FLORIDA LEASES ONLY. In order to comply with the provisions of Section 713.10, Florida Statutes, it is specifically provided that neither Tenant nor anyone claiming by, through or under Tenant, including, but not limited to, contractors, subcontractors, materialmen, mechanics and laborers, shall have any right to file or place any construction lien of any kind whatsoever upon the Premises or improvements thereon, any such liens are hereby specifically prohibited. All parties with whom Tenant may deal shall be put on notice that Tenant has no power to subject Landlord’s interest to any construction lien of any kind or character, and all such persons so dealing with Tenant must look solely to the credit of Tenant, and not to Landlord’s interests or assets. 19. GENERAL 19.1 Assignment and Subletting. Tenant shall not sell, assign, mortgage, pledge or transfer this Lease or any interest therein, nor sublet all or any part of the Premises, nor license concessions or departments therein, without Landlord's prior written approval, which may be withheld at Landlord's sole and absolute discretion. 19.2 Notice. Unless otherwise expressly stated herein, notice to Tenant or Landlord (“Notice”) shall be effective only if Notice is in Deal ID: WPG-072996 4 be delivered (1) to Landlord at the address set forth in Section 1, or to such other address as Landlord shall designate by giving written Notice thereof to Tenant; or, (2) if to Tenant, at the address set forth in Section 1 or such other address as Tenant shall designate by giving written Notice thereof to Landlord. Any such Notice (including any statement, certificate, request or demand) shall be deemed given upon receipt or refusal of receipt. 19.3 Entire Agreement. This Lease and any and all attachments and exhibits hereto, constitute the entire and complete agreement between the Parties and supersedes any prior oral or written representations, promises or agreements between the Parties with respect to the subject matter hereof. 19.4 Amendment. This Lease may not be amended or modified, and no waiver of any term or condition shall be effective, unless made in writing and signed by the Parties hereto. 19.5 Failure to Enforce. The failure of either Party to object to or take affirmative action with respect to any conduct of the other which is in violation of the terms of this Lease shall not be construed as a waiver thereof, or of any future breach or subsequent wrongful conduct. 19.6 Severability. If any term, provision, covenant or restriction of this Lease is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Lease shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 19.7 Survival. The obligations of Tenant (i) for payment of rent and charges under this Lease, (ii) for performance of obligations which by their nature must be performed after the expiration or earlier termination of this Lease, and (iii) under Section 9 (Indemnification) of this Lease, shall survive the expiration or earlier termination of this Lease 19.8 Governing Law. This Lease shall be governed by and shall be construed in accordance with the laws of the State where the Center is located, excluding any conflict of laws rule or principle that might refer the governance or the construction of this Lease to the law of another jurisdiction. The Parties expressly waive all right to trial by jury in any action, proceeding or counterclaim arising out of this Lease. 19.9 Counterparts and Electronic Copies. This Lease may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument. A signature to this Lease executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature. By signing this Lease, Tenant acknowledges that he/she understands ALL provisions included within this Lease and ALL provisions within any exhibits attached to this Lease, and Tenant agrees to be bound by this Lease. LANDLORD TENANT CLAY TERRACE PARTNERS, LLC, a Delaware limited liability company LIT FIREWORKS, LLC Indiana Limited Liability Company D.B.A. Lit Fireworks By: Name: Title: _ Date: _ By: Name: Title: _ Date: _ DocuSign Envelope ID: 651D6E7D-6A2C-4CDA-9431-2256B819ADF0 5/22/2023 Todd Denning Member Jennifer S. Hillman General Manager 5/22/2023 Deal ID: WPG-072996 5 EXHIBIT A LOCATION OF LEASED PREMISES DocuSign Envelope ID: 651D6E7D-6A2C-4CDA-9431-2256B819ADF0 writing and is (i) delivered in person, (ii) delivered by U. S. mail, or (iii) delivered by a reputable overnight courier. Any such Notice shall DocuSign Envelope ID: 651D6E7D-6A2C-4CDA-9431-2256B819ADF0