HomeMy WebLinkAboutRestraining Order
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July 16, 2001
E. DAVIS COOTS.
STEVEN H. HENKE
JAMES K. WHEELER.
HAND DELIVERED
COP}'
T. JAY CURTS
JAMES D. CRUM
ELIZABETH I. VAN TASSEL
John Molitor
11711 N. Meridian Street
Suite 200
Carmel, IN 46032
JEFFREY S. ZIPES
JANICE R. MANDLA.
MATTHEW L. HINKLE
SENGHOR A MANNS
RE: James and Betty Huffer - Goodyear
Our File No.: 14076
1. KATHRYN JENKINS
DANIEL E. COOTS
.CERTIFIED MEDIATOR
Dear John:
Enclosed please find a courtesy copy of the Verified Complaint for
Temporary Restraining Order, Permanent Injunction, Declaratory Judgment and
Damages which was filed today. The Court has set a hearing on the temporary
restraining order for July 20, 2001 at 1 :30 P.M. Please give me a call if you have
any questions or comments.
Very truly yours,
COOTS, HENKE & WHEELER, P.C.
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E. Davis Coots
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Enclosure
255 East Carmel Drive
. Carmel. Indiana 46032-2689
317-84-+-4693
FA,\:: 317-573-5385
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IN THE HAlYfIL TON SUPERIOR COURT NO.3
CAUSE NO. 29003-0107- C l' - '1 S B
STA TE OF INDIANA )
. )SS:
COUNTY OF HAJvUL TON )
JAMES E. HUFFER AND ) .-
BETTY J. HUFFER. ) -.
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Plaintiffs. )
v. )
CITY OF CARl\1EL, fNDIAl"l'A )
)
Defendant. )
APPEARANCE BY A TTOR..l\fEY IN CIVIL CASE
Party Classification: Initiating:X-
Responding:_
Intervening:_
1. The undersigned attorney and all attorneys listed on this form now appear in this case for the
following party member(s): James E. and Bettv 1. Huffer
2. Applicable attorney information for service as required by Trial Rule 5(B)(2) and for case
information as required by Trial Rules 3.1 and 77(B) is as follows:
Name: E. Davis Coots
Address: Coots. Henke & Wheeler. p,e.
255 East Carmel Drive
CarmeL Indiana 46032-2689
3. There are other party members: Yes:_
Attorney Number: 3367-29
Telephone: 317 844-4693
F.~~: 317 573-5385
Computer Address: dcootst@chwlaw.com
NO:-L (If yes, list on continuation page)
4. . Iffirst initiating party filing this case. the Clerk is requested to assign this case the following
Case Type under Administrative Rule 8(b)(3): CP
5. I will accept service by F A.X at the above-noted number:
Yes:--1L-
No:_
6. This case involves support issues. Yes:_ No:~ (If yes. supply social security
numbers for allfami~v members on continuation page.)
7. There are related cases. Yes:_
No:L (If yes. /iston continuation page)
8. This form has been served on all other parnes. Certificate Of Service is attached: Yes:X No:_
9. Additional information required by local rule:
i,!wq t.t2e> Is
Attorney-at-Law
Attorney Information shown above
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;~ppe~rance Format for Use by Attorneys in Civil Cases; 4/1/95
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APPEARANCE FORMAT-CONTINUATION PAGE (Civil Case for Use by Attorney)
Case Number:
29D03-0 I 07-
First Listed Party Member:
James E. Huffer
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing has been duly mailed via United
States First Class Mail this 16 t!Jc1ay of July, 2001, addressed to:
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City of Carmel, Indiana
Mayor James Brainard
One Civic Center
Carmel, IN 46032
Department of Community Services
City of Carmel
One Civic Center
Carmel, IN 46032
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E. Davis Coots
COOTS, HENKE & WHEELER, P.C,
255 East Carmel Drive
Carmel, Indiana 46032-2689
(317) 844-+693
Attorney No. 3367-29
P:\EDC\huffeje. wpd\ 14076
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STATE OF INDIANA )
)ss:
COUNTY OF HAMIL TON )
IN TIlE HAMIL TON SUPERIOR COURT NO.3
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CAUSE NO. 29D03-0107-
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Plaintiffs.
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JAl\t1ES E. HUFFER and
BETTY 1. HUFFER,
v.
CITY OF CARMEL, INDIANA
Defendant
VERIFIED COlVlPLAINT FOR TEMPORARY
RESTRAINING ORDE~ PERMANENT IN.JUNCTION,
DECLARATORY JUDGMENT AND DAMAGES
James E. and Betty J. Huffer, (hereinafter referred to as "Huffers") Plaintiffs, by counsel,
for their action against the City of Carmel. Indiana. state as follows:
COI.JNT I
BACKGROUND INFORMATION
1. James E. and Betty J. Huffer are residents of Hamilton County, Indiana and own
real property located at 800 South Rangeline ~oad. Carmel (hereinafter referred to as "Real
Estate") the legal description of which is attached hereto as Exhibit A.
2. The City of Carmel, Indiana is a municipal corporation located in Hamilton
County. Indiana.
3. In 1986. Huffers obtained special use approval from the City of Carmel to
construct a commercial building at the above described location that was subsequently leased to
Goodyear Tire & Rubber Company (hereinafter referred to as "Goodyear") per the terms of the
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Lease Agreement attached hereto as Exhibit B.
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4. In April 1997, the City of Carmel submitted a draft Purchase Agreement to
Huffers for the City to acquire the real estate as a part of the City's Civic Center Project.
Negotiations between the Nlayor of the City and Huffers continued from 1997 through
November 2000 when the Huffers were advised by the Cannel Redevelopment Commission that
the City of Carmel was financially incapable of purchasing the property and that the City did not
presently need nor would it purchase the property until an unspecified time in the future.
Plaintiffs were also advised by telephone in November 2000 by Rich Roesch, Chairman of the
Carmel Redevelopment Commission that Mayor James Brainard had no authority to make a deal
to purchase the property with the Plaitniffs regarding the property at 800 South Rangeline Road
that they had leased to Goodyear even though the Plaintiffs had spent over three (3) years in
negotiations.
5. In reliance on the City's representation that it would purchase the Real Estate;
during calendar years 1998 and 1999, Huffers attempted to relocate the Goodyear Tire & Rubber
Company business to a different location; however, have been unable to do so.
6. In June 1999, Goodyear's franchisee and sub-tenant, David Goodnight died and
his estate continued to operate the Goodyear facility until March 2000 when the store closed for
remodeling. No exterior changes have been made to the building. The interior has been painted
and new equipment is to be installed.
7. On September 18.2000. the Cannel City Council enacted Ordinance Number Z-
347 which rezoned the real estate from B-3/Business to C-IICity Center District. A copy ofZ-
347 is attached hereto as Exhibit C.
8.
On April 9, 2001, Huffers informed the City that Goodyear intended to reopen the
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store that Goodyear had employed twelve (12) individuals to work in the store and that Goodyear
would invest approximately Two Hundred Thousand Dollars ($200,000.00) improving the
interior of the building.
9. On May 2,2001, the Department of Community Services informed the Huffers by
letter attached hereto as Exhibit D that the Huffers and Goodyear would not be allowed to reopen
the store "due to the non-conforming status in the C-l District" based upon Carmel Zoning
Ordinance 28.1.5 attached hereto as Exhibit E on the basis that the business had "discontinued"
(March 2000 to March 2001) for more than one (1) year and thus the Goodyear use was now a
prohibited use having lost its legal nonconforming use status. (The ordinance upon which the
City relies was adopted September 18, 2000).
COUNT II
TEMPORARY RESTRAINING ORDER
10. Plaintiffs incorporate by reference the allegations contained in rhetorical
paragraphs 1 through 9.
11. As the result of the Department of Community Services decision prohibiting
Goodyear from reopening the store. Huffers will irreparably be damaged by their inability to
deliver possession of the real estate for Goodyear's intended use. by the monetary loss of rent.
and costs associated with their efforts to reopen the Goodyear store.
12. Huffers request the City of Carmel be temporarily enjoined from enforcing the
terms of the letter from the Department of Community Services (Exhibit D), will lose monetary
loss, legal expenses and lost opportunity under the percentage rent provisions of the Lease
Agreement (Exhibit B).
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13. The City's amendment of its Zoning Ordinance on September 18,2000 rezoning
the property from B-3 to C-l commences the time from which Huffers legal nonconforming use
of the property began and pursuant to Carmel Ordinance 28.1.5, the "discontinuance" of the use
must exists for a one (1) year period before the use is an illegal non-conforming use.
14. The Huffers have demonstrated a probability of success on the merits of the case
thus entitling Huffers to a temporary restraining order prohibiting the City of Cannel from
enforcing the decision of the Department of Community Services denying the Huffers the right to
occupy the real estate in a commercial manner.
WHEREFORE, Plaintiffs pray the Court enter its temporary restraining order after notice
to the City of Carmel enjoining the City from enforcing the decision by the Department of
Community Services that denies the Huffers the opportunity to operate their commercial
business, that the temporary restraining order be made permanent after trial, costs of the action
and other proper relief.
COUNT ill
DECLARATORY.JUDGMENT
15. Plaintiffs incorporate by reference the allegations contained in rhetorical
paragraphs 1 through 14.
16. The City of Carmel relies on its Zoning Ordinance 28.1.5 as the basis for denying
Plaintiffs the right to conduct business at the location identified in rhetorical paragraph 1
claiming the City's amendment of the ordinance from B-3 to C-1 now precludes the Plaintiffs'
use of the property as a non-conforming use. Pursuant to I.c. 34-14-1-2, Plaintiffs are entitled to
a determination of construction of the ordinance and the City's conduct pursuant to its ordinance.
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17. The City's interpretation of its ordinance and issuance of the ruling prohibiting
Plaintiff s from occupying the real estate for commercial purposes is erroneous.
WHEREFORE, Plaintiffs pray that the Court enter its declaratory judgment determining
the Plaintiffs use of the property to be a legal non-conforming use, that the use has not expired,
that the legal conforming status exists and that Plaintiffs are entitled to the commercial use of the
real estate.
COUNT IV
DAl'-fAGES
18. Plaintiffs incorporate by reference the allegations contained in rhetorical
paragraphs 1 through 17.
19. As the result of the City's enforcement of its determination that Plaintiffs are not
permitted the use of the described real estate due to the expiration of the legal conforming use,
Plaintiffs are damaged under the terms of the Lease, by incurring legal fees and costs, by having
to incur filing fees, publication fees and notice charges.
WHEREFORE, Plaintiffs pray the Court enter its judgment in an amount sufficient to
compensate Plaintiffs for the losses sustained herein and all other proper relief.
I SWEAR AND AFFIRM, UNDER THE PENAL TIES FOR PERJURY, THAT THE
FOREGOING REPRESENT A TIONS ARE TRUE Al~D CORRECT.
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~ E. Huffer
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E. Davis Coots
COOTS HENKE & WHEELER, P.c.
255 E. Cannel Drive
Cannel, IN 46032-2689
P:\EDC\huffeja. wpd 14076
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RESPECTFULL Y SUBMITTED,
COOTS HENKE & WHEELER, P.C.
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E. Davis Coots
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LEGAL DESCRIPTION
Part: of the North Half of the Norme3St Quarter of Section 36, Township 18 North. Range 3 East
in Hamilton County. Indiana.,. described as follows:
Beg1nning at a point on the East line of the ~orme3St Quarter of Section 36, Township 18 North.,
Range 3 E3St 623.97 feet South 00 degrees 00 minutes 00 seconds (assumed bearing) from the
Northeast comer of said Northeast Quarter; thence South 00 degrees 00 minutes 00 seconds on
said East line 175.16 fee:: thence South 90 de~' ees 00 minutes 00 seconds West 2.3 9.11 feet:
thence North 00 degrees 00 minutes 00 seconds 'N'est parallel with the East line of said Quaner
173.00 feet:o J. point 618.97 feet Svuth 00 degre:s 00 minutes 00 seconds of the North line of
said Northeast Quarter: thence ~orm 39 de::rees :7 minutes 30 seconds East par.illel \Nir.h said
North line 139.12 feet to the place ofbegT..nning~ containing 0.956 aces, more or less.
Together with the rights granted per a Redproc:ll Easement Dedaration by Carmel Plaza
Comoanv dated Sc:ntember 17. 1980 and :ecorded Sc:~tember 19. 1980 in y[iscellaneous Record
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161, page 3~ and later amended by Amc:ncirnen.t to Reciprocal Easement Declaration executed
bv and between Carmel Plaza Com'Oanv and 3alcor Income Prooemes Ltd.. III. dated November
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13. 1985 and recorded Juiy 3 L 1986 in ~fisce!laneous Record ~. page 317 as lnstrUIIlent number
8615782.
Subject to all mortgages. liens, enc~br:mces. coven.ants, easements and rights-af-way of record
and building md use restrictions.
Subject to :til La.,\:es now .:l. lien me :0 ~ecome .:!. :ie:l me=eon.
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EXHIBrr
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TIle GOCMlyearTire.IbdJber~
~"k-t-oD. ,Ohio 404.318 - 000.
May 13, 1997
CERTU'lED MAIL
RETUIL"l'REC1i:TPT REOUESTED
James E Huffer and Betty J Huffer
750 South Ocean Boulevard
APT #14N
Baa Raton, FL 33432
Dear Mr and Mrs Huffer:
Please refer to that certain lease dated January 10, 1986, whereby The Goodyear Tire &
Rubber Company, as Lessee, is occupying those certain premises owned or controlled by
James E Huffer and Betty J Huffer, as Lessor, and located within the Carmel Plaza
Shopping Center, 800 South RangeIine Road, Cannel. Indiana, which said lease will expire
on July 31, 1997.
Pursuant to the terms and conditions of said lease, we hereby exercise our option to extend
our term of occupancy under said lease for a further period of five (5) years, beginning
August 1, 1997, at a minimum rental of 55,475.54 per month, and subject to all other terms,
conditions and provisions thereof.
Very truly yours,
TIm GOODYl:-AR TIRE & ROBBER COMPANY
By
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Manager - Admi~ Estate
S A Mikolay
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EXHIBIT
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TIle Gooc1yoarDre.Jbihber~""",
P. o. lOX 8110A
CHICAGO. 11. 60680-8735
April 22, 1986
Mr & Mrs James E Huffer
Sable Ridge
750 South Ocean Blvd, Apt 14~
Boca Raton, Florida 33432
Re: Goodyear Tire Center
Carmel, Indiana
Dear Jim. and Betty:
Attached are the Lessor's and Lessee's copies of the lease for subjact
location.
Prior to Goodyear's execution, the fol10~ng changes were made which
require the Lessor's initials:
1. The term was changed from 15 to 10 years.
2. One additional renewal option period was added.
3. Paragraph 25 was added.
Please initial in the boxes provided and return to me. Thank you for
your cooperation.
Sincerely,
.fLvJ~'~
Real Estate Representative
N R Hartman
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LESSOR'S COpy
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Lease
THIS LEASE entered into and dated as 01 the 10tr- day of January
cen James E. Huffer and Bettv J. Huffer, Husband and Wife
. iY 86
PO Box 50114, Indianauolis, Indiana 46250
,Addre)., IZ::I ,,- t'Ck1
:ssor. and THE GOODYEAR TIRE & RUBBER COMPANY. an Ohio corporation having a prin..::pal office in the City of
In. State of Ohio. as Lessee.
WITNESSETH. that:
lessor does hereby demise and lease unto Lessee. and lessee does hereby hire and take from Lessor. those certain premise!;
ted at the Carmel Plaza Shopping Center on Westfield Boulevard (Range line Road)
( J\4I.IfPt.~
Ie City of Carmel County of Har:tilton
State of Indiana 46032 . described as follows:
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r~ of the Nor~h Half of the Northeast Quarter of Sec~ion 36, Township 18 Nor~h, Range
East in Hamilton County, Indiana, described as follows:
ginning at a point on the East line of the Northeast Quarter of Section 36. Township
North, Range 3 East 628.97 feet South 00 degrees 00 minutes 00 seconds (assumed
aring) from the Northeast corner of said Northeast Quarter; thence South 00 de~rees
minutes 00 seconds on said East line 175.26 feet; thence South 90 degrees 00 minutes
seconds West 239.11 feet; thence Nor~h 00 degre~s 00 minutes 00 seconds West parallel
t~ the East line of said Quar~er 1i3.00 feet to a point 628.9i feet South 00 degrees
~inutes 00 seconds of the North line of said Northeast Quarter; thence North 89 degrees
minutes 30 seconds East parallel wi:h sa~d North line 239.12 feet to the place of
ginning, containing 0.956 acre. more or less.
r with aU structures to be erected thereon and all appunenances thereto. herein called the "premises. ..
TO HA VE AND TO HOLD the same for a term as hereinafter provided. and Lessee hereby agrees to paythcrefor arm~t.'fifFyum
:al of S 4,500.00 . in advance on the first business day of each month during said term to
lIl1tCn "1_-..."_ of ...... dftllUlCll .... 1..-.,
Post Office Box 50114, Indianapolis, Indiana 46250
MW Social Security number(s) fieHare)
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:Isewhere as Lessor may. in writing, direct. Lessor's ,,,,pI8) er i2fuliH-'4ticR .uuftser as ..ilfted S) IftUlfft~ Ra a"... Sar
Jaces E. Huffer SS 0263-36-8467
Betty J. Huffer SS 0310-28-2182
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"oval or !.<ssor ;?~.;:1J ~
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Approval of Lessee ~
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I'I{OVI~)ED I\L',I,,',\YS. :h:a In" :l';I~C I' ellll:rcL.! tnt" Up,lIl :nc: following terrn, ;Inll <:Ilndltlnn,. al::,f .....Il!C!llh.: ;",arli':~ hc~::1O lU'-'en.lnll:l
~C":p .,nu rcd'lrm:
I. i ai Within a reasonable lime aller the CltecU\lon hereof. Lessce sh:lll submit to Les.wr ('Ians and s('eei{jcation~ r"r the constr'.lCllon ,,1' !m-
f'ro"cments on said :lremiscs. Should any reviSion and: or correction be required by Lessor. such revision nr correction shall he ,unmilled II'
Leslic:'s A lc ron. Ohio o{rice wil hi n ten ( 10) days aiter recei pI oi said plans and specific:uions by Lessor and, if apf'rovetJ by Lesscl:. snail then ".,
incorporated in said plans and spcci(jcauons. Each party snail thereupon approve said plans and specifications. which approval sh'll! :l01 he:
unreasonably delayed or wnhhc:ld. With," twe:uy (201 days ~fter such appmvaL ,Lessor shall request not less th~n three (J) h,ds from qualified
bidders. Lessce may, but shall not be reuuired 10. ~btaln adalllonal olds. Such bIas shall be opened at a preestabltshed lime, place and date. and
Lessor ~hall give Lessee's Archuectural [)jvuion in Akron, OhiO at least seven (i) days' :mor written notice the~eof so that Lessee may atte:td :[ 'I
elects so to do. Lessor shall award the construction contract to the lowest responsIble bidder at a cost not to exceed that au' honzed In \lo'rillng b~
Lessee's Architectural Division and shall thereafter proceed promptly 3t its expense with construction In accordance wilh said wr:tten
allt I\orization.
(b) The parties hereto estimate that the cost of constructing s;ud improvements. plus Ihe following costs when authorlzed :lnd requested ')v
Lessee in writlng:-
(I) The cost of a topographical survey made prior to the preparation of plans and specifications. (5) The cos:: 0 r all ;:'~ rill 1 .
(2) The COSI of an ~as built" survey provided promptly aiter the completion of improvements. (6) The cos t 0 J: a" OJ ~.; ! .; .
(.3) The cost of soilteSlS conducted prior to the preparation or plans and specificacions, . . ...: - - " ..... ... .
(4) A.ny cost incurred by Lessor in preparation of plans and specIfications. c:onnec t l.on .. ees ;
wdl not exceed an aggregate ofS ]00,000.00 [n the event Lessee elects to cause the p,itls~nJrp~cih~a1fo~s ~~ ~~~1~e~'f,? ~~g .
A.rchltect other than the Lessee's Architectural DIvision, Lessee snail pay the cost thereof and, upon billing therefor to Lessor. the latter wi!!
promptly reimburse Lessee for the :OSI of such architectural services. Such reimbursed amount shall be included as a part of :he a~grega'~
construction costs. [f, within thirty (jO) days after the date tixed for the taxing "f bids, Lessor shall determine that it is unable to perform said
construction for such estimated amounc or less, and Lessee is also unabie to perform said construction for such estimated amount, then Lessee
mayeleet. by notice in writing to Lessor within sixty (60) days after such date. either to: (I) pay the excess construction cost over and above s.aid
estimate, or (2) revise the plans and specitic:U1ons so that the contemplated improvements may be constructed for t hat amount, or (3) requm:
Lessor to provide the additional funds neeessary to meet such excess construction costs. but subject to reimbursement by increase in rernal
payable hereunder in accordance with the provisions of Paragraph I (e) hereof. In lhe absence of 3ny such c[ection. either Lessor or Lessee may
cancel this lease by notice in writing to the other, whereupon both parties shall be relieved of all liability hereunder. In the event that Lessee ~1:3i1
eject to cancel this lease according to the foregoing. Lessee shail. upon billing therefor. reimburse Lessor for its out-of-pocket expense :n
obtaining a topographical survey, in securing soil tests, and in payment of architectural services, to the extent such expenditures were requested
in writing by Lessee.
(c) Lessor shaU cause the construction worle LO be performed in a good woric:manlik: manner ~nd will fully complete same in accord:tr.':e
""ith aU approved plans and specifications on or before Oc :ober 1 [9 86 with due allowan!:e,
,owcver, for strilees, acts of God or other unavoidable contingencies beyond the control of Lcs.sor. If the improvements shall not have been ccm-
,Ieted on or before such date. plus the amount of any delay (but not more than ninety (90) days) attributable to any of said contingencies, then
,-essee. at its option. shall have the right to cancel this lease by giving to Lessor written notice of its intention so todo, and Lessee shall thereupon
)C relieved o{ aU liability l1ereunder. LESSOR SHALL ADVISE LESSEE IN WRlTING AT LEAST TEN (IO) DA YS PRIOR TO fH E
)ATESUCH IMPROVEMENTS SHALL BE COMPLETED AND ARE READY FOR OCCUPANCY. The parties bereto understanc! tnat
~sor and Lessee may from time to time prior to such completion agree in writing to certain modifications and/or changes in the aforo::>aid
Ilans and specifications. All resuitant construction modifications andl or changes shall be made by and at the expense of Lessor, and ~h~ cr-!
hereof shall be included as a part oi the aggregate construction costs.
(d) TH E TERM of this lease and the payment of rental hereunder shall begin on the lirst day of che s~~~alendar month following a.Hh
Ite receipt by Lessee o( any Certificates of Occupancy required by any governmental authority and the date of completion of the Improvcm<:r:I\
::lr the uses for which they are intencJed. which date shall be verIfied by a visual inspection of the completed improvements by Les~:'s rej:lresen-
uive. and it shall continue for a period of '" . " ' . -:' Ten (:0) years thereaCter.
(e) Promptly aCter the completion of the above reierred \0 improvements. Lc:ssor.-"p"- rT<;j"..' ":' I f.r~.. shall furnish to Lessee a cor:'.-
lelc summary of the auregate cost thereof, and such cost shall be subjeet to audit by Lessee's authorized representative. If such COSI shall i:>c
lore or less than the estimated cost set fortb above, then the m.onthly rental specified on the face sheet (or lirst page) of this lease ~h311 be 111-
)is well as the opel.on years
'C3sed or decreased accordin8lyJretroacu",e to the beginning of the term hereof. by II 12th of twelve (12) % of the differc:lcc:.
(f) Lessee may. with the permIssion of the contc:actor and at Le3see's sole ruk. enter into the premises prior to completion and maJce su..:h
stallations as it deems desirable for the operation of its business provided. however. that such entry and installing shall be done in such m;anner
not to interfere with the construction of the improvements. Notwithstanding such entry and instalIingand Lessee's oc:cupancy of the premIses
r the purpose o( doing busines.s. the term shall begin and rent shall be payable as set forth in (d) above, but the beginning o( the term and pay-
ent of rental hereunder snail not preclude Lessee from requiring Lessor to correet defects in the construction work arising out of Lessor's
ilure to comply with plans and specific2tions, or from requiTIng Lessor to diligently complete thec:onstruction worlc at the earliest pOSSIble
Ite in accordance with the approved plans and specifications. In the event Lessor shall fail to correct such delects or shall (ail to complete
nstruction at the earliest possible date. Lessee may, upon giVing written notice to Lessor. cause such defects to be corrected or such construe.
In work to be completed. and it may deduct from subsequent Installments of rent an amount suflicient to reimburse it for cxpcmlC:s incu~d'.
correcting defects or completing construc::tion. . .
'proval of Lcsso~ - (~~
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2. .~olwithstanding the provisions of Paragraph I(d) hereof. at Lessee's option [his lease shall not become binding on Le~sce, and Lessee shdll
nor be obligated to pay rer.tal. until u:ssor shall obtain slIch certificates of ()CCupancy, permits, waivers and consents as may be required bvan"
governmental body as authority [orthe usc of the premises (onne purpcscSJet forth herein. together with such licenses andl or permits as mav ~
necessary (or the installation or construction of alterations. improvements, and / or identifications necessary [or u:ssee's use and occupancy or
the premises.
J. Except as otherwise provided in the plans and specifications. Les.sor shaH, at its expense, provide electric, water. stonn and sanitary sewer and
nat ural gas service to the building to be conscruc::,ted on .the demis~ premis~ as required. Less~ will pay for all elect~city. water, and natural gac;
or other heating fuel used by Lessee on the herein demlKd premlSCS, Ind will pay all charges Imposed by reason of Its use of storm and .
sewers. Lessor shall assist Lessee. when necessary, in obtAining appropriate billings for the aforesaid utilities.
four (4)
4. Lessee may extend the term of this lease and all the provisions hereof. as amended from time to time. for
(urlhe~ successive periods of five (5) years cacho by notiiying u:ssor in writing of its intentionsso to do at least.> '
days prior to the expiration of the then current term, The monthly rental during the optional ex:ended term's
shall be as follows: A
First Optional Term $5.166.67 Third Optiodl Term $69041.67
Second Optional Term $5.666.67 Fourth Optional Term $6.041.67
S. wsor shall pay all Real Estate Taxes and Assessments due and payable on the herein demised ,Premises during the term hereof before the
same become definquelu. Provided l.essor submiu to I...essce a billing for the real estate taxes 10 paid. toptha- with the receipted bill therefor,
wit IRI..J..~I} (98) days after such payment shaU have been made by Lc:ssor. Lessee shall reimburse Lcuor for the amount thereof. Reim!:lunc-
ment of such taxes shall be limited to the....-..t minimum installment amount permiued bv law. shaJJ not include reimbursement of delinquc.'\:~'
penalties. shall not require reimbursement in advance of curran insullment due dates. and shaU be apponioned at the beginning and expinuiuo
of the leasc term to incfude only such taxes applicable to Lessee's term of said lease. Lessee shall have the right to contest any levy oi such taxes in
its behalf or in behalf of Lessor in ICCOrdance with the provisions of the laws relating to such contest.
One Hundred Eighty (180)
" ., ....in all-risk form
6. Lesscc.. at Its expense. wtll carry fire and extended coverage Insurance on the demised premiseslto the full replacement value thereof. with
proceeds payable to Lessor. lessee andl or any mortgagee (whose name and addre.u shall have been furnished to Lessee in writing), as their
InteresU appear. and J...cssce will. upon request.. furnish to Lessor a ceniticate showing the issuance of such coverage. Said cenificate shall fta\'':
noted thereon a statement that such insurance shall not be subject to cancellation except afte~t... hi 9) dltY" prior wriuen notice to Lessor :'If such
cancellation. - t irty { 30)
i. Lessee agrees to indemnify and hold Lasor harmless from any Iou. damage or injury to penonl or proJ'e1'lY resulting from Lessee's use and
occupancy or the: demised premi.iC.l, ~Jo__pl Ie 1"'4. l._l...~t ~_j!h: JUI, 4.lJll4o-=S ~, :..;<1ries &U "4._.M Is} :.tlIlll. 4.1-'11: -~. ..!.4 b} t lUlf.
8. Lessee is expresaly permitted to usc and occupy lhe premises for the sale of such products and furnishin, of such services as in Goodyear Auto
Service Centers generally. including. but notlimatcd to. the selling to consumers and to others of tires. tubes. oil and other lubric:antl, motor and
lire accessories and kindred producu. and the scrviang.uoring. and repairinl of motor \lehiclc:a. tires. tubes. and kindred prodUCU. or for any
ot~lawfulpu~ other than a theatre. liquor store. lounge. arcade. health spa. drugstore or
1 pharmacy department requiring the services of a registered pharma~ist. a food store or
:ood department or for the sale for off-premises cons~ption of groceries. meats. produce.
iairy products or bakery products.
9. If l..cssce shaU hereafter install at its eJlpenle any shdving. lilMina and other fixtures" unit heaIen. ponable air conditioninl uniu. ponable
panitions or any trade fixtures. or if Lcnee has heretofore insu./Ied or applied or shan hereafter install or apply any advenisin. .i,ftS or other
s'and.rd identifICAtions of Lcace. any anide 10 inlcaUed or aay identiflCAcion so applied shall be tbe P!Operty of Lessee whICh Lessee "'.lay
remo\le at tbe termination of this Ieuc.. or remove alldl or replace .. any time durinllts occupancyt.provided that in such removal l.cssee sha!t'
repair any damqc occuioned to the pt'emilCS. by either installation or removaJ. of such property.
G~ hLl
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*except for any changes required because of a change in the basic character
ot the use of the prem~ses. which changes wi~~ be made by Le~see.
10. (a) Lcuor willlr.c:ep tbe foundations and roof in Joad coadidon aod n:pair, aad will make all repairs ~.ry to maintain ~he lU'UClural
soundness Ot chc aoora aDd walla duriq the tenD hen:of. , -- .qa = ..n bui1~ CbaD. iftltaUa&ions ~~ to confonn with
a:PlicablelawaandOrdiDancaatlnthe~ll_r.h.II(~Or~).o _ apvrqJ W"I~~ \Iro!. Lterqla9.ft._ LcssorIS rcqulrea
t 1ft...... aaia er welCb notJg: AU ~9 JiveD to Lcuor by Lcaec. CJiUYm&Jtartec"~ rej!airs ~1IIU.La,il tQ co!mfete t~ at tflC ArUd~!ne
cla!c, ~ II!!Y cauacl~~O be ~e or co~pfctcd aDd J!I&Y d~UCl fro~ subsecplcDLIDIWlm~Qrr=~ JD. ~OUllt su lacnL to
....i...hurq: It r~~xr-- '''~''''''''''In ....!tin. Ii.qlDP1cliD&sudl~cu.ifdll:-''''.~M~'.o!suda~aceed.cme ~ ') ."..(~.-tAai!t_
may, at its option, caacct thaleale and be rdiewd of all further liability ben:wu:ler. Lessee will not commit any undue wate on the premascs and
will conform with aU applicable laws and ordiDanc:es ..pectinl the use aad occupancy tbereof reJaUnl to matters not covered elsewhere herein.
provided that Lcaee shall in DO cyall be required 10 mate any alteratioas. ..tdltions, or improvemenu to such premisc:s in order to conform
Iherewit~Lasce at iu own expclDC may, ill a good work....n1ikP- maaDa', make sucb alterations md/ or additions to tile impr~ts on the
demised premises as it JhaU deem aecesaary in the conducs ofitl busiDc:u and sball not be required to ratore the improvemenu to their orisin&!
condition. Al tbe rcrmiDation of this Icac. LaIee will surreada' tile praaiIes to Leaor in substantially a lOad coadition of repair as wbeD
received, ordinary wear aDd tear, damqe by rue. the ctaneaa aDd _voidable casualty excepced.
(b) Lcuor will funaisb, ia ac:cardanc:e with chc plans and specirlClliOIU referred to in Parqrapb I hereof, an~r::: in good repair all
necessary equipment (or maintaining Mequce hat and air condi1ioaiq ill the building on tbe premises.
(c) It is expreuly understood and qreed by the panies berelo tbat, notWidaatandingany contrary provision of this lease or of applicable law.
the exercise by Lcaee of iu fisht to ofl'aet &pinst rentals those monics aad expaases provided in Parqrapb I(t) and Parqrapb 10( a) hereof. shall
not constitute a default of this lease nor a brudl of Leuee's obliption to pay rentals, and Lessor hereby expressly waiYeS all right to dec.lare s
default of Ibis lcue by reason of such action by Leuee. or to ocberwiae recowr such monia and expeasea from Lcuee.
(d) Lessee shall be responsible for maintenance of the parking areas, driveways and
landscaping of the p~emises.
II. Lasce may uaip this Icac or sublet the premises or any pat tbcreof, but such assignment or sublettinlsball not in anyway release Lessee
from its liability to ~y reat as provided herein or from its liability to cany out and perform in the manner herein set forth any of t!se other
co\lC1lants and condiUoaa of tbis lease.
12. Lessee shall have the exclusive right to use the premises for advertising purposes and the display of advertising signs. so long as such use is
not in violatioD of applicable laws and ordinances.
I J. At any expiration or cancellation of tbis leue. should Lessee hold ovcr for any reason, it is bereby qrecd tbat, in tbe absence of a wriuen
llJl'CC1IIent to the contrary. such lenancy shall be from montb to month only and subject to aU tbe other terms, conditions and prov;siom:
theretofore in effect wilh respect to aaid lease.
14. It is agreed that the waiving of any of the covenants of this leale by either pany shall be limited to the panicular instance and shall not he
:ieemed to waivc any other breaches of such covenant.
r S. (a) If the improvements on the premises 3haU be damqed by fire. the elements. or unavoidable casualty so they an: render:d totaJly
Inlen~ntablel,t.essce shall have the right. if it so desires, to terminale this Lease a of the day of damap. and aDY rental paid in advance beyond
;uch time shaU be returned by Lessor 10 Lessee on demand.
(b) 'fthe improvements on the prcmisa shall be damqed by fire. the elementl or Wlavoidable casualty, but are Dot rendered totaDy un-
enantablll Lessor ahan proceed forthwith to commence tile ratonUoa of the improvemeDu to the coaclitioa existiq inuncdiatclYlrior to
uch damqe or destruction and (or that purpose sball be entitled to the proceeds o( insurance cowrinl'uch damqe or dcsuuc:tion. I , within
ixty (60) days aCta' the date of such damqe or destructioa. Lessor .ball not havc commenced such restoration, or at any time prior to the
...cssor'l completion of such resloralion. should such teStoraaion be Wlreaoaably delayed, Lcuce may elect. by notice in wrilin.. cic.bcr (a) to
:ance1 this lease and be reliewd of all liability hereunder frOlll the daae of sucb damqe or destruction, in which eveat Leuor shall be entitled to
he insurance proc:eeds covcrinl such daaaap or dauuc:tioa. or (b) to ralore the damqoect propeny to substaatially the same condition 'as .
:xisted immecbately prior to the date of IUch dam.. or dcsuuctioa. &ad for this purpose Lessor shall make available to the Lessee tbe pr0Cee6s
If aU insurance covenn, sucb damaae or destruction. Durinl &DY such period of partial occupancy, Lessee shall pay rental in such proponi()lt to
he entire renlaJ herein rcsc~ that the no.or space actually occupied bean to the entire floor spec:c hemn lcued, and Lessor shall return to
.cssee on demand any renlal paid by Leuee In advance 10 the exteDtlhat such payment exceeda the reduced rental. Any cancellation of this lease
'y Lessee as above provided shall be without prejudice 10 any other righes held by Leaee.
qfor a period of more than sixty (60) days,
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more than =en percent (la%) of the land or any part of the building forming a pa:t 0r
o. (a) Ir<'he premises. or any part thereof. shall he appropria',ed rorany public use by virtue of eminent domain or condemnation proceeuinll.
If if bv reason of any 13w or ordinance. or by court decree. whether by consent or otherwise, rhe use of the premises by Lessee for any of the
.urp.:.ses hereinbefore rcferred to shall be prohibitcd or unduly re.nricted. ~:r.sceshall have the right to terminate this Icasc upon written notice
(l L:ssor. and rental shall be paid only to the time when Lessee surrenders possession of the premises. In the event of partial appropriation o{
oy part o{ the premises described hctein. Lessee ma)' elcct to continue in possession of that pan of the premises not so appropriated under the:
lime terms and conditions hereof. except that in such cases Lessee shall, effective upon the date oi such taking by the Condemning Authorit v. be
ntuled to a reduction in the monthly rental payable during the remainder of the then current term of this lease and any renewals provld~d :a
'aragraph 4 hereof. said reduction to be equal to II 12th of twe 1 ve (12) % o{ the condemnation award (less that portion of sai.]
ward required to restore improvements. if any) oblaine~ by Lessor. Lessor andl or Lesse~ s.hallhave the right to contest the amount of " uch
ward in accordance with the provisions o{ the laws relaung to such contcst. Any rental paid In advance beyond such ume shall be ~tum.:d h~
esso!' to Lessee on demand.
/ (b) Lessee reserves the right to claim, prove and receive in any condemnation proceedings such amount as may be allowed for tixtur~ and
ther equipment installed by it. and for the unamortized value of its leasehold improveme~u, and for the value of its remaining leasehold
Ilere~t. including moving expenses. reinstallment of equipment expenses, replacement of equipment not salvageable. that may be permitted !'y
w. all of the foregoing being in recognition of the added expenscs and inconvenience such forced vacation o{the leased property tmposcs upon
essee.
(cl All renlals accruing hereunder shall be abated during any ~riod in .excess of three (3) consecutive days rhat rhe motoring public IS
:nied access to the premises demised hereunder because of construct~on. repatr. or other work undenalcen on streets and; or highways adjacent
. said premises by or wlth the consent of any governmental authonty,
'. If Lessee shall be in default in the payment of any rent due hereunder. or in the performance of any ofthecovenanu or conditions hereof. and
all fail to correct and rectify any such default within thirty (JO) days from the receipt of written notice thereoffrom Lessor (provided, however.
at in the event of a default othetthan payment of rent or other sum certain so long as Lessee begins to cure within thirty (JO) days after receipt of
Ilice, Lessee shall have a reasonable time in which to compleu: cure), or if Lessee shall be adjudicated bankrupt, or make any assignment for the
nefit of creditors, or if the interest of Lessee herein shall be sold under execution or other legal process, Lessor may sue to recover the rent or
~er payment due or may, in an appropriate case, enter into said pRmiscs and again have and repossess the samc as if this Lease had not been
lde and shall thereupon have lhe right to cancel this Lease without prejudice, however, to the right of Lessor to recover all rent due to the timc
~uch cntry. (~case of any default and subsequent cntry, Lessor shall relet s~d premises {rom time to time during the remainder ()f the term
reof for the highest rent obt81nable and may recover {rom Lessee any defictency between ~uch amount and the rent herein reserJed.
~or may enter upon the premises at all reasonable timcs to examine the condition thereof. but such right shall not be exercised In ::t
:nncr to interfere unreasonably wlth the bUSIness of Lessee.
.r' If III ~f~"U ~"~ h _"..!J~..u l\bA.~u. ilia. :du.. :_, l^i.~l. - .ii-' _r .I.. r"d ~.Ji 'd {-,.. .' '.' '.r. Iff Losee ~had
t(lrm a an smgu ar t e covenants ereln Impos upon It. or WI warrant an e en ~ssee tn the enjoyment and peace ul ;:losscslllon
,he premises dunng the term hereof. (See paragraph 22)
~ will permit Lessor to place and maintain on the premises the usual"For Rcnt" or "For Sale"signs during the lastsixty (60) days ot th::
" hereof.
It is undentood .~d a,reed that a~y notice give~ by either pany he~o to th~ other under ~y of the provisions hereof sball be deemed to
e been property debvered when reptered or certlfied and deposited In the United States mails with adequate poSI. affi.xed, addrcsses1 Fe;
Lessee at II.... East MarltctStreet, Akron. Ohio 044316. attention Rea! Eslate Depanment. orto L.essor at the place wher.: the rent was last
I prior to such notice, orto sudl other person and p!ace as the panics may from time to time direct in writing. Any notice given in any manner
:r than as specified in this ~rqraph shaU be deemed defective and shall be of no force or effect, whether or not such notice is actuail\i
ived. .
Lessor shall proceed for~hwith to acquire the fee simple title to the land descr~bed
~in and shall furnish to Lessee a copy of the deed and closing statement establishing
~rship and the acquisition cost thereof, If Lessor shall fail to advise Lessee in
~ing that Lessor has acquire~~h title and to furnish Lessee a copy or such deed and
;ing statement on or before ~ 1. 1986. then Lessee, at its election by notice in
:ing given to Lessor at any time thereafter but prior to the time when Lessor does
lire such title and furnish a copy of such deed and closing statement to Lessee. may:
~e1 this lease. whereupon boeh parties shall be relieved of all further liabi1~ty
!under.
ApprovaJ of Lessee
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2). Wiehin a reasonable time afcer che expiracion of each leas~ year of che tcr~
hereof, Less~e l.;il1 submit to Lessor a 5tater.lcnt of Sales showi.ng the "net sales",
as chae ee~ is hereinafter defi~~d, billed eo cuseomers from leased premises, as
reflected on records of account maincained in the operation of the business (comman
co and standard for Goodyear Auto Service Cencers). Ii 3 percent of Retail Sales
plus 1 percent of Wholesale Sales (for the purpose of this paragraph all sales of
cruck cires and tubes shall be considered Wholesale Sales) shall exceed the sum c:
the minimum annual rental provided herein, then Lessee shall pay to Lessor, as
additional rencal for such lease year, an amount ~qual to such excess, provided,
however, th~ during the initial term only, the excess rental payable hereunder in
anyone lease year shall not exceed an amount equal to 12 times the minimum monthly
rental provided herein. ~o Statement of Sales need be submitted with respect to any
lease year in ~hich the maximum rental is payable to Lessor. For purposes of this
Lease, "Net Sales" shall mean the gross sales billed from the premises by Lessee less:
returns and allowances granted by Lessee; amouncs in excess of Lessee's cash saleS;--
price charged on sales made on credit or under time payment plan; the amount of all
Federal, State, or Local excise, sales, use, retailers' occupation taxes or si~ilar
taxes or impositions where the same are billed co customers as s~?arate"items; and
all receipt from vending machines and public tel~phones.
24. This lease shall be subordinate to any first mortgsge or deed of trust now and
hereafter a lien upon the demised premises or upon any real property of which the
demised premises form a part; provided. however. that subordination in any instance
shall be contingent upon. subject to, the following conditions which shall be binding
on the holder of any such mortgage, any purchaser at foreclostJre sale or otherwise.
and any other successor in interest:
(a) Lessee shall not be disturbed in its possession and occupancy of the demised
premises during the original or any extended term of this lease notwithstanding
any such mortgage. so long as Lessee complies with and performs its obligations
hereunder.
(b) Any person or entity who by virtue of any such mortgage acquires and
exercises the right to receive the rents payable by Lessee under this lease shall
thereby become and remain obligated to Lessee for the due perfon18nce of all the
terms. covenants, conditions and agreements of this Lease on Lessor's part to be
performed so long as said person or entity continues to receive said rents, and
Lessee agrees to attorn to said person or entity.
(c) Lessor agrees that the Lessee shall be permitted at its option to correct
any default arising from any such mortgage. and shall be permitted to recoup any
payments or expenses in correcting such default from subsequent payments hereunder.
25. Lessee and Lessee's customers, employees and visitors shall have the right
of ingress and egress ov~r tl:te,.driYl!.~ClY.s and p~rk.i.Il&,area.s 0;' -.t.Mea.di..:a..c.are'S. Shopping
;U ~ ..,;:;,~; <>r ai;) S.....CLj r~, ,__..s are .;;IE:" 1.J...1.. J... w..e-"T ~FJ:''-J -
Center t.1. Q. ...-.--. - - C d rl'
eas~ment decl<<ration date~'September 17, 19vq.an reco~Aea.~n~h
"e"",l.e",'oer 1:) l\)i'J\.; i~ :niscel.!..,-;.ne0:.lS record lb2 - paGe .;46 ~.. ....e
) ... \, . ,.. " , ,
~i~ t:,!--"Ot.lt;:".: ~ecor'_p.rs off~cf1.
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Approvat of L<ossor ~/ .1JrLl
~ ( nitials)
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Approval of Lessee
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This lease contains the entire agreement between the parties bercto. and DO repr-efttstions. inducements. promises. or agree-
ments, oral or otherwise, sball be biDdinl upon Lessor or Lc:sscc unlas reduced to writinlUd siped by both parties.
If any coveaant of this lease sball, to any exte1l~ be beld invaJid or unenforceable by a fmal judpment of a court of competent
jurisdiction, the remaining terms and conditions hereof sball continue in full force aad effect and shall be enforceable to the full
extent permitted by law.
This lease and all the provisions hereof shall be bindinl OD and inure to the benefit of the hein. executors. administrator.!. suc-
cessors aDd usilDS of both parties hereto.
This lease is subject to approval by Lessee at its bome office in Akron, Obio aad IhaI1 not become biadin& on Lessee until signed
by its officers or duly authorized repn:senwiw: and a fully executed copy deJm:red to Leuor.
IN WITNESS WHEREOF. tbe parties hereto have caused these presents to be duly siped as of the day and year first above
written.
,
Approvals
Lessor
~
g~T:!::t0
Be1:1:y J. ..g
Ix
IX
WITNESSES:
e~ ()~
By
Lessee
THE GOODYEAR TIRE &: RUBBER COMPANY. .'
/~ .':
~
Director-Real Estate
//1 ~ ~~h
,
Attest:
U Assistant Secretary
Q
(;)
IIG-'~t
7
ACKNOWLEDGMENT BY LESSOR (CORPORATION)
,TEOF
JNTY OF
I.
. a Notary Public duly sworn. commissioned and authorized for lhe lbove Counl.
Slate. and residing lherein. do hereby certify Ihat Iud
whose names as President and
'etary of . a corporation. aR sig:ted 10 the
:to annexed leue. and who IR weJlltnown to me to be the ldenticaJ pcrson(s) who sultsc:ribeo the n-.ne of the I..essor to said lease. personally appeared beforc
in said County and acknowlcdpd belore me on tbis day that (he is) (she is) (Ihey are) the officeris) above designated and lhat (he is) (sbe is) {they Ire)
JAlnted with Ihe seal of said corporation and tllaC tbe seai affixed to said lease is tbe JCaJ of said corporation and that as such otrlCC!(,) (he) (shel (they) signed
lease in (his)(her)(their) own hAlldwntinl and sealed and deliveRo said lease for and as (his) (herHlheir, own free act and deed and as the freue! and deed of
corporation for lbe uses. purposes and considen&ions mcutioned and expressed therein on lbe date thereof and Ihat the act of scaling. cxecuting and
lIenng said iease wu duly authorized by resolution of lhe Din:cton of said corporation.
Oivcn under my hand and.seal of office thIS day of 19
Notary Public
My C"mmission Expires
ACKNOWLEDGMENT BY GOODYE."R
Public duly swom. commissioned and authorized (or the abo\te CnunlY
and
whose names as and
inant Secretary of OOOYEAR TIR E.I: RUBBER COMP AN Y. a corporation. are siped to the betcto annexed lease. and who are wcIlltnown 10 me
c the idCDtica1 persons who sublCribed the name of Leaee thereto. pcrsonaily a""eared before me in said County. and acknowledpd before me on this da" that
I are the officials above designaled and tbat they are Kquainted ...;th the seal of said corporation Illd tbat tbe seal affixed to said lease is the seal 0; said
~ration and Ihat as such otrlCiai. tbey signed said Ieue in their own handwr.tiDlllld sealed and deliverea said lease for aUd as their own (ree let Ind deed and
lie free act and deed of said cofl'orauon (or the _. purposes and considerations mentioned and expressed therein on tlte date thereof and thaI tbe ac:t 01
iog. executin. and delivering said IeaIc w.. duly ~rized by resolution (jhe Oi~n of said corporlltion.
Oiven under my nlnd and sea! of office this , l day of ~ - y 19 ~
';7'() 1 ~ /71; .il. L1<i~ ( ~; , x')
I,. . , Notary Public :./
1\.4y Commission Expires
~ Jt. fm"rOEfl. MftIJ'9 ~
State of Ohio, Resldecf County Summit
ACXNOWLJ:DGMEN; BY INDIVIDUALS My Commisslon ExpIres Sept. 2B, 1987
'TE OF IND !ANA
UNTY OF MARION
I. John A. Grayson. . a ~:Qlary Public duly authurized and qualified in and (or the abo'Jc CounlY and
le.andresidinlthemn.dohen:bycenifyt"ac James E. Huffer and Betty J. Huffer, husband and wife .
)Ie name(sMHJ (are) signed to tlte forc,oillllcaae hereto annexed. and who X lare) well known 10 me. personally appeared before me in said County and
nowlcdged bcCore me on this day t"ll. beln, informed b:v me of the contents of SlId lease produced 10 IDe. (and beinl pcrsona.lly known LO I9Wl to be lite idculiea.1
10n(11 whose nanJe(s)UC) (are) affixed thcrcto)~thcy)Cllecuc.ed.. siped. sealed and dcti~ ,he same voluntarily Illd o(",~'hcirl own free will
accord (or tbe uses and parpoaes named and expressed tberein.
Oiven under my hand Ind sea! of office this 10th day o( J' an uary 19 .-aL..
John A Grayson. Notary Public
State of Indl;:na &f L.!r~e
Resldent:)f i1!1nor CounlV
My C(l:nr:'i::~'-~ . . ,;j. ':5
M:1V ';:." ,
tary Public
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PROPOSlID ZONE MAP CHANGE
Ordinance No. Z-347
AN ORDINANCE TO APPROVE A CHANGE IN TIm OFFICIAL ZONE MAP
INCORPORATED IN THE CAR!vlEL CLAY ZONING ORDINANCE
WHEREAS, the City of Cannel and Clay Township, pursuant to a joinder agreement adopted under
the Township Joinder law (IC 36-7-4-1200 et Jeq.), have caused co be prepared a comprehensive plan for
the City and Township, which plan was prepared by HNTB Corporation and is known and referred to as
the 2020 Vision Comprehensive Plan; and
WHEREAS, the 2020 Vision Comprehensive Plan was approved and recommended by the Carmel
Clay Plan Commission on August 20, 1996. and duly approved by resolution of the Common Council on
September 24, L996, and is therefore the official Comprehensive Plan of the City of Cannel and Clay
Township; and
WHEREAS, the Cannel Redevelopment Commission, with due regard to such Comprehensive Plan,
. has proposed the creation of a new zoning district (C-l) to promote property values and mercantile
opportunities in the area oftbe City of Cannel that now includes the Carmel Civic Square Complex and
will include the proposed. Cannel City Center; and
WHEREAS, the purpose of the C-l District is to create and protect land areas for the redevelopment
of parcels in the City Center area; and
WHEREAS. an ordinance creating such a new zoning district to facilitate redevelopment of the City
Center area has heretofore been duly adopted by the Common Council;
NOW, TIiEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, Indiana,
that, pursuant to Ie 36- i -4-608 and after having a received a favorable recommendation from the Carmel
Clay Plan Commission, it hereby adopts this Ordinance to rezone the parcels that are described on
Exhibits "A" and WB" attached hereto. from the 1- i and B-3 Districts to the C-{ District.
PASSED by the Common Council of the City of Cannel, Indiana this~day of ~ [JHYlfblr':
2000, by a vote of l.L. ayes and ..Q.. nays.
~in~~
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.
Robert Battreall
~ ~
EXHIBIT
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PROPOSED ZONE MAP CHANGE
ATI'EST:
(lOlJu.~ ?}tea., iJ.Lj'Ju:!y,elMi..
l ~.Diana L. Cord ;Clerk- T1'e35W"ef
Presented by me to the Mayor of the City of Carmel, Indiana, this lei" day of ~p:kh htlv" ,
2000,,<< _ a 'sleek.
L1f'uu.~ (~' 9wltJILtI 1) 1l1lch;->~
L.~C)t DianaL. Cordra ,~rk-Treasuler '
Approved by me, Mayor of the City of Carmel, Indiana, this l~ay of ~ 2000.
A TrEST:
U. flJuil ~Q'-LO; i1p.<.] W-
_ ~iana L. Cordra: , -Treasurer
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DE_~~7lv~"'T OF COi\.GiCt..]NlTf ~!:...'{,V1c-.:.S
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jyfa.y Z~ 2001
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Ivfay 2,2001
~fr. James E. Eufer
Re: C3I::lel Gccc.yeu - 800 F ':IT'lge Line Read
Page 2
YOU:IlaY a1J1:e~ :+,ic:; de~~i'T"':::!ron. if:l'ot! so cl:cose, to tile Cazmel Board oiZoIIin~
Appeals' (32..-\) witbi!!. :bir=y (30) Cays from ti:e d.a:te ofmis lette:'. -
A second optio!:. fer you "N.cuid. ~e:o A: ~l:.,r fer a 'franance or use: accorrH,"~:o the r-.:l.es of
the 3z..~ to allow fur tile ope~o!:. of an AllIOmobile Service Station.
I !e"'ii7e ~ic; d.e~;T"::1..rio!l ....!....babl.l' c.ces ::.ot ::!let favorablv W'!t::l 'ffOU. S.a.ouid .'OU ~i.s1l
-.- .....,
to follow aIle or :oth courses ::.orec. aCcY"e: or, wis.h :0 disc':1SS fur..he:- :he spe:::i:tics or m.y
d.et~1T1ati.an. please con': ::'esl'CIe:c '.:o~::ne at 317 571 241 i.
VerI trUly yours, ""
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La NONCONFOR.MING USES .~'fD EXSC?TIONS
:.1 L~aI ~onc:onformin2 Use Scecifiorions
A !eg:1! nonconforming use m:1Y be =ntinued. ~though sucl1 use does
It conform to all the provisions or this ordin:mc:, as hereinafter provided:
23.1.1 A legal nonconfor:ning use may be e:acded throughout I.
iIding provided no S'tI'Uc:un1 alterations ::En: made d1erein~ ~"'CC~~t those
iuired by law. Existing reside:1ces in the various Business and Indumial
stric:s may be muc:unlly alre:-ed and e:t;'anded..
28.1.2 A legal l1onconiorming use may be canged to mother- legal
ncon/orming use of the same res:ric:ions~ provided !to srruc:ural alterations
~ made in the building. W'henever a legal nonconforming use has oee::1
anged :0 a =nforming use~ it shall not the:-e3f:er be changed to a legal or
illegal nonconforming use. .
23.1..3 No building shall be erec:ed upon any premises devoted to a.
~ nonconfor::ting use., exc~pt :n conrormanc: with the app!icab!e
,visions of:i:1is ordinmce.
28.1A Nothing her-em contained shall r~uire any ci1ange in ti:e
ns. conmuc::ion or designated use or a building fur whi6 3. building
::nit or Improvement Lac:mon P~:mir has been hereroIbre issued. and the
~.1c:on of wmcil has commenc=d and has Oee:1 dilige:1tiy pursued wititin
, (1) Ye:Jr of the date or ~.w:tc: of such pe.--::::it, and whicil cure building
til be compl~.ed ac::ording to sue pi~ witi:W1 d1ree (3) ye:us from cite
~ of passage or :his ordinance.
23.1.5 In:he eve:1t ::a: a regai ::oncomcr:ni::.g use or my building or
ci.ses is discontinued :Or a ~e::od or one (!) Ye:1r. the use or said :,uilding
;:7remises shail tilerear.er c::mor:n tc the ~pHc:U:lle ~rovisions of :his
mane:.
23.1.5 Existing 'JSes ~Egibie :Or special use ~proval sh:ill :lot ~e
.sidered regal nonconror::l!ng 'JSes ::lor :-equire special use J.PProva! :or
:rinuanc: bm shall require spec:31 'JSe ~rcval :Or my 3lre.~0n.
U'ie:nent or ex:-..:lS1on.
23.1. i T!lese ~rovisicI1S shall ~piy in dIe same :nanner to my use
Q :nay bec::me a. legal nonconforming use due :0 3. later ame:C:1ent :0
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EXHIBIT
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;~r simil~ ~:.:ipme::t for ch:: c!i~_-:oucon ~c c:msuoers of :e!:::;:none or
,;::)rn.mu:lic:lrions. :::!:=c::-:c::y, g:.s or w:.ter me :h:: Q11::::::::on of s:nicry
;e or sur::c: w:.ter ope~ed JrJ.dlor m:iaained by 3. government ~"1rity
ubiic utility, includ.ing ~~mm:ry me!::- pedest:1is. re!:::phonc: pedesw.ls.
lurioa tr:mSI'crmers md r::npor::y utility f':tcilities required during
'acon. whemer my suo fucility is toc::w:d underJrcund or ~ove
~ but only wne:l sue fr:mci:isea utility f':tcilities Jre locted in 3.m=r
)f-w3:f or in m e:1Seme.."1t less dun t'We:%t'f-Eive (2.5') re:=: in width. r!1e
ions or this orc:in:mc: sh:1i1 be C:)mplic:d with on 3.11 privare properoj'
-~e:1:::%1tS ~e::ty.five (2.5) fe:: in width and OVe:".
:3. i.l R.1il:oad ::':leks. rig!1ts~f.way sig:~ bridges and simil~
es :me: equipme:u [octed on ::t ~lroad :igtlt-.Ji-way, :me: mal.'1te:l3rJ.c=
p~r work on sue xliries ane: ~uipm:::t.
23. i.3 Fu:::s. 3S c::;-::ed here~.. ue :;,er:ni::ed in all dis't'ric::s.
. ~
.ngs md :najor (over 400 sq~e ree::) ::te::sscr'"f buildings are subje:::
!;~'~g Improve::1e."1t L:,c:!.rIon ?:::::itS fOr C:~..tc:ion.
13. i..L Noci:nng in tills oror-mc: maH preve.":t :he :-es-..cr"..r:on or a.
.g or S'::'".lc:'.J..'": des:'oyed :ess ....~ forry' (~O) per::''':t or itS :'"""~e:
IX :he :i:ne or sue: des:-.lc:on (e:cciusive of :ee ...aiue of :he lot) by
,on. fire.. tIood.. =r::qu:!.k:. win~r::l. 3.C: or C'1Jd.. riOt or ~ oi::t
~..:::y, S"lolOsequ:::: :c.:t%.= ~2SSa.g~ or ::is or:i::mc:; or snail ~r:ve:r
ltinu.mC~ oi :he use.. ~==pt :m illeg3.i :1oncomct':'"'"..ing use. or sue::
g, 5O:'...c::%re or par: :b.e..~i. 3S sue: use ~'"Cist= J.t ~e time or sue::
:::=:t of sue:: ~wlcii:g, s:'".:C:-":"~ or ~ar: ::ereor: All sue.:: res:cr3Ii.on
:IS::"".lc::on )~~l ~e subje::: :0 :::e :Joaini::g or m !mprove:e:::
:n ?:r:::l't. ..vi'C :f:1: fees waived. :Or :t%.e ~r.mcn or 3. building or
~ ~~.....yeci ~ess ~ :or::." (~%) pe:-..::::: and ~..creci ac::rcmg :c
: of ~.cc prior ~ des::-..c::cn. .-\il :-=r:OtlS :-esuiting :n 3-
::c:: =Or: origm31 ~ims or ~r.:1g 3. ,uildi.~g or s::"".:c:-..:r: des::-oyed
.Q~~) ~er:=: :r !nO~ sh.a.i.l ~e S'Ucj~ :0 ccr.'!y-....g m Unprove=ct
n ?:=:t ~C: ~ay!:':e::! oi :~
:3.7'.5 Ail CZ:y or C~:~ :me: C:~ 70wnship gove:"""..I:1e::t3l ~ities
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STATE OF INDIANA ) -", I' " INTHE HAMIL TON SUPERIOR COURT NO.3
COUNTY OF HAMIL TON .lSS:::~~ CAYSE NO. 29D03-0 107- 6P!/ r!b
.-... .....~-
JAMES E. HUFFER and -' ." )
BETTYJ.HUFFER, )
)
Plaintiffs, )
)
v. )
)
CITY OF CARMEL, INDIANA )
)
Defendant )
ORDER SETTING HEARING ON TEMPORARY RESTRAINING ORDER
Comes now the Plaintiffs, by.counsel. and files their Verified Complaint for Temporary
Restraining Order, Permanent Injunction and Declaratory Judgment and Damages.
And the Court, being duly advised in the premises, now finds that this matter should be
set for a hearing.
IT IS. THEREFORE. ORDERED, ADJUDGED AND DECREED that the hearing on the
Verified Complaint for a Temporary Restraining shall be set for the 20th day of July, 2001, at
1:30 o'clock P.M.
DATED:
7 ) 1ft /1drJ (
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Distribution:
E. Davis Coots
COOTS HENKE & WHEELER. P,C.
255 E. Carmel Drive
Carmel. IN 46032-2689
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Department of Community Services
City of Cannel
One Civic Center
Carmel, IN 46032
City of Carmel, Indiana
Mayor James Brainard
One Civic Center
Carmel, IN 46032
P:\EDC\huffejd. wpd 14076
.. ~ 01