HomeMy WebLinkAboutLease Agreement & Option to Purchase
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LEASE AGREEMENT AND OPTION TO PURCHASE
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This LEASE, entered into as ofthe 21 5t day of September, 2005, isbyandbetween JILL LOUISE
PERELMAN of Missoula, MT (hereinafter "Lessor")~ and the CARMEL/CLAY BOARD OF PARKS
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AND RECREA nON (hereinafter the "Tenant"), and is entered into pursuant to Indiana Code S 36-1-10
and is subject to all the terms and conditions contained therein and herein. The "Effective Date" ofthis
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Lease shall be as set forth in Article XVI Section 10 below.
WITNESSETH TItA.. T:
Whereas, Lessor, sold andlor donated to Tenant in 1997, approximately 75 acres of real property,
located at 2700 West 116th Street in Carmel, Hamilton, County, Indiana, now developed as a public park
and commonly referred to as "West Park";
Whereas, in conjunction with the sale of West Park to Tenant, Lessor arranged a grant to Tenant
ofa Right of First Refusal to acquire approximately five (5) acres afreal property at the southeast corner
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of West Park, which right Tenant has exercised and which real property Tenant has acquired and on
which property Tenant has secured a Schematic Design for further future development of West Park; and
Whereas, in conjunction with the sale of West Park to Tenant, Lessor also granted to Tenant a
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Right of First Refusal dated December 8, 1997, granting Tenant the right to acquire four additional
contiguous parcels of real property (the "First Right") totaling approximately forty (40) acres lying
immediately west of the west boundary of West Park (the "West Park Extension"); and
Whereas, Lessor has offered to Tenant, in compliance with the terms of the First Right, the right to
allow Tenant to acquire a portion of the West Park Extension pursuant to the lease purchase process
allowed by applicable Indiana law; and
Whereas, Tenant has determined that it is in the best interest of new development within the
Carmel-Clay Community to exercise its right to acquire the West Park Extension subject 10 the terms and
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conditions set. forth inthePirst Right and this Lease so that it may accomplish its goal to serve new
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developme,nt in the impact zone over the next ten (10) years, all as contemplated in the 2005-2010 Zone
Improvement Plan recentlY adopted by the City.
In consideration of the terms, cDvenants, and mutual undertakings provided for herein, Lessor and
Tenant agree as follows:
ARTICLE I
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Premises
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Section 1. Leased Premises. Lessor hereby leases to Tenant and Tenant hereby leases from
Lessor the real estate described in Exhibit "A" attached hereto, containing approximately 35 acres :!:
which is commonly known as 3030 West I 16th Street, CanneJ, Indiana. along with all the fixtures,
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improvements and appurtenances attached thereto or located thereon and subject to the Prior Possessors
described ip Section 2 below, (all collectively referred to in the foregoing recitals as the "West Park
Extension" and in the following provisions as the "Leased Premises").
Section 2, Prior Possessors. The parties nereby acknowledge that Lessor has entered into a
certain Farm Lease Agreement dated July 12, 2005 (the"Fann Agreement") providing for the cash rental
of approximately nine (9) acres of the Leased Property for agriculture purposes.The parties hereby agree
that upon the execution of this Lease, Lessor shall assign all of her rights and interest in the Farm
Agreement to Tenant; provided that Lessor shall retain all rights to receive proceeds from the Farm
Agreement for the 2005 crop year. With the exception of the Lessor's right to receive the 2005 crop year
proceeds from the Farm Agreement, Tenant shall have the sole and exclusive right to receive the benefits
of the Fann Agreement, to terminate such agreement or to enter into any similar farming or crop
arrangement on the Leased Premises throughout the Demised Term, and Tenant shaH have the right to
retain all proceeds therefrom.
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Section 3. Use of Leased Premises. The Leased Premises may be used by the Tenant for any and
all governmental, purposes, for purposes of locating a park and other improvements thereon and for any
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other purpose lawful for the Tenant to undertake, including the sublease of all or any portion of the
Leased Premises to private third parties on the terms provided for herein; provided however, that Tenant
shall not during the term of this Lease or thereafter develop the Leased Premises for residential or
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commercial purposes. The deed transferring title to the Leased Premises to Tenant as provided for in this
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Lease shall contain a perpetual restrictive covenant prohibiting the development ofthe Leased Premises
for residential or commercial purposes. Throughout the tenn of the Lease, the Tenant shall keep the
Leased Premises in a dean and orderly condition and shall conduct its business therefrom in a careful and
safe manner. The Tenant shall not knowingly use the Leased Premises or maintain them in any manner
constituting a violation of any applicable ordinance, statute, regulation, or order of any governmental
authority, including without limitation zoning ordinances, nor shall the Tenant maintain, pennit or suffer
any nuisance to occur or exist on the Leased Premises.
Section 4. Essential Use. The Tenant represents, warrants and covenants that the Leased
Premises will be used primarily for park and recreation purposes for the benefit of the Carmel-Clay
community and will not be used in. a trade or business of any private entity except as otherwise
specifically allowed herein on a temporary basis and under applicable law, and as is consistent with the
data collected and presented in conjunction with the recently adopted 2005-2010 Zone Improvement Plan
and Ordinance Z-471-05 AS AMENDED. Tenant further represents, warrants and covenants that a
present need exists for the acquisition of the Leased Premises which need is not temporary OT expected to
diminish in the near future and is essential to the proper, efficient and economic fulfillment of the
Tenant's responsibilities for conducting its business, including, but not limited to, the operation of parks
and recreational facilities in Clay Township, Hamilton County, Indiana.
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ARTICLE II
Tenn andPavments
Section 1. Demised Term. The term of this Lease shall be for forty-eight (48) consecutive
months, commencing on the 21 ~i day of September, 2005, and ending on the 20th day of September, 2009
(the "Demised Term").
Section 2. Lease Payments. Tenant agrees to pay to Lessor, at such place as Lessor may
designate from time to time in writing~ a sum according to the schedule and amounts set forth in Exhibit
liB" attached hereto and made a part hereof,- on the dates set forth thereon. All amounts listed as
"Principal" 6nExhibit liB" shall be paid on the date set forth for such payment. The due date for the
portion of the paymentdesignated as "Interest" shaH be the date set forth on Exhibit liB"; provided that, at
the election of the Tenant, the portion ofthe payment designated as t1InterestU may be paid to Lessor in
twelve (12) equal monthly installments, with the first such installment due and payable to Lessor on the
payment date indicated on Exhibit "B". After making such an election; the Tenant can thereafter prepay
any part or all of any remaining Interest installments prior to the installment payment date.
Section 3. Limited Obligation. The Lease Rental Payments and other amounts which may be due
pursuant to this Lease are payable solely from (a) impact fees made available to the Tenant as
contemplated in the applicable Impact Fee ZOne Improvement Plan and Impact Fee Ordinance currently in
effect and as'amended from time to time, (b) rental or other income generated from the Leased Premises;
(c) gifts, bequests and/or donations, and (d) the Tenant's distribution of County Option Income Tax
imposed pursuant to Indiana Code ~ 6-3.5-6 for Hamilton County, and are not payable from any other
source. The Tenant and Lessor agree that payment from real estate property taxes shall be prohibited
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unless the Tenant complies with the procedures oflndiana Code 9 36- 1-10 and seeks the approval ofllie
Indiana Department of Local Government Financ~, and complies with all other necessary legal
requirements.
Section 4. Utilities. In addition to all other obligations of the Tenant as provided for herein, the
Tenant agrees to pay all charges for any utilities consumed on the Leased Premises during the Demised
Tenn, and all charges for the removal and storage of trash from the Leased Premises.
ARTICLE III
ALterations. Maintenance. Taxes and Improvements
Section 1. Alterations. The Tenant shall be permitted, at its own expense. to make any
alterations, additions, repairs or improvements to the Leased Premises consistent with the use of the
Leased Premises as allowed herein, and which do not unreasonably diminish the value of the Leased
Premises, or which are specifically agreed to in writing between the Tenant and Lessor. Notwithstanding
the foregoing, and so long as Tenant is not then in default hereof, Lessor hereby agrees that Tenant may
demolish the residence, barns and other outbuildings and otherwise improve and alter the Leased
Premises for use by the Carmel-Clay community as an extension of West Park; provided however, that if
Tenant intends to demolish the house and/or its garage during the first twenty four (24) months of the
Demised Term, Tenant shall first give Lessor thirty (30) days prior written notice and make a good faith
effort to obtain Lessor's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Should Lessor not respond to Tenant within thirty (30) days after receipt of the
notice, Lessor's consent to demolish the residence shall be deemed to have been given. All alterations,
additions and improvements to the Leased Premises shall be made in accordance with all applicable laws
and shall be designed to enhance the future use and development of the Leased Premises for park and
recreation purposes, and shall become the property of Lessor, subject to this Lease and the Option to
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Purchase set forth below.
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Section 2, Maintenance. Tenant shall beresponsible for making all repairs necessary to maintain
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the Leased Premises in the condition it is in at the time of execution ofthis Lease, the effects of ordinary
wear and tear, 'acts of-God, casualty, insurrection, riot or public disorder excepted. Lessor shall collect
and deliver to the Tenant any written warranties related many way to the Leased Premises, or any
improvement or equipment located thereon, and shall cooperate with and assist the Tenant in enforcing
any such warranties in the Tenant's own name, or in the name of Lessor, as the case may be. Other than
the foregoing, Lessor sball have no obligation to provide maintenance for any aspect of the Leased
Premises during theOemised Term except as otherwise:specifically required by this Lease.
Section 3. Taxes, The Tenant shall be responsible for all real estate and personal property taxes
and otherasselisments On the Leased Premises>which become due and payable in November, 2006, and
thereafter. The Lessor shaH be responsible for the payment of all installments ofreal estate and personal
property taxes and other assessments which become or are due and payable at any time prior to
November, 2006. Lessor- shall forward all statements for taxes or other assessments payable by the
Tenant to the Tenant immediately upon receipt.
ARTICLE IV
Indemnification
Section 1. Tenant's Indemnification. The Tenant shall indemnify and hold Lessorhannless from
and against all damages, claims and liabiIitiesarising:from or connected with the Tenant's,control or use
of the Leased Premises, including, without limitation, any damage or injury to person or property,unless
such damage or claim arises because of the negligence of or intentional tarts- of Lessor, its guests ,or
invitees.. This indemnification shall not include any matter for which the Lessor is effectively protected
against by insurance. If Lessor shall, without fault, become a party to Litigation commenced by or against
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the Tenant, then the Tenant shall indemnifY and hold Lessor harmless therefrom. The indemnification
provided by this Article shall include Lessor's legal costs and fees in connection with any such claim,
action or proceeding.
Section 2. Lessor's Indemnification. Lessor shall indemnify and hold the Tenant, Clay Township
of Hamilton County (the ..To.....llship"), the City of Carmel, Indiana (the "City"), and their respective
officials, officers, employees and consultants, harmless from any and all liability or claims relating to the
Leased Premises, including, without limitation, any damage or injury to person or property or claims for
expenses or costs (such as services or utilities), which arise out of events occurring prior to the Tenant's
possession of the Leased Premises, or occurring at any time and resuJting from Lessor's negligence or that
of its guests or invitees. Lessor further warrants and covenants to the best of Lessor's knowledge, that
except for possible asbestos-containing materials, the Leased Premises do not contain any Hazardous
Substances, including any hazardous, toxic or dangerous substance, waste or material (including, without
limi1ation, petroleum, petroleum products and their constituents), that are or may become regulated under
any federal, state or local statute, ordinance, rule, regulation now or hereafter in effect pertaining to
environmental protection or health ("Applicable Environmental Law"). In the event the Leased Premises
shall contain any Hazardous Sub~ces including asbestos containing materials, or otherwise not be in
compliance with. all Applicable Environmental Laws, Lessor agrees to hold harmless, indemnify and
defend Tenant, the City and the Township from and against any claims, demands, penalties, fees,
damages, losses, expenses or liabilities (including attorneys fees) resulting from any breach of the
representation or warranty made in this section, or for the cleanup or remediation of such Hazardous
Substances from the Leased Premises or any other properties. Lessor's indemnification shall survive the
Term of this Lease Agreement except as to any asbestos containing materials. Lessor's indemnification
obligation regarding such asbestos containing materials shall terminate as of the expiration or earlier
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termination of this Lease Agreement.
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Section 3. Mutu~1 Release. Lessor and the Tenant do hereby release the other from allliabiHty
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for any accident, damage or injury caused to person or property; provided, however, that this release shall
be effective only to the extent the injured or damaged party is insured against such injury or damage,and
only if this release shan not adversely affectthe right of the injured or damaged party to recover under
such insurance policy.
Section 4. Asbestos-Containing Materials. Notwithstanding any other provision of this Lease, in
the event any structure or improvement located on the Leased Premises is discovered during the term of
the Leaseto contain asbestos-containing materialswhich are required or recommended to be removed or
remediated in accordance with federal, state or local rules, statutes, regulations or ordinances, or in
accordance with generally accepted engineering principals, Lessor shall be responsible for the payment of
all reasonable costs, fees and expenses related to any assessment, removal and disposal of asbestos.
containing materials, and the restoration of the improvements to their original condition prior to such
removal. Upon the discovery of any such materials, Tenant shall give Lessor sixty (60)-day notice to
proceed with removal or remediation, and if Lessor does not commence such activities within such time
and pursue them diligently to conclusion, upon fifteen (15) days additional notice to Lessor, Tenantmay
commence or complete such activities at Lessor's expense. Lessor's obligation_s under this Section shaH
terminate as of the expiration or earlier termination of this Lease Agreement.
ARTICLE V
Destruction and Condemnation
Section 1. Destruction. The Tenant shall belit'therisk of lo's5 or damage to the Leased Premises
during theOemised Term. In the event the Leased Premises or any portion thereofis destroyed, damaged
in whole or in part by fire or other casualty, then the Tenantshall cause the net proceeds of any insurance
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claim [Q be applied to the prompt replacement, repair, restoration or improvement ofthe Leased Premises,
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unless the Tenant shall have exercised its option to purchase the Leased Premises pursuant to any
provision of this Lease. Any balance of the net proceeds remaining after su~h work has been completed
shall be the property oftbe Tenant. For the purposes of this article, II net proceeds" shall mean the amount
remaining from the gross proceeds of any insurance claim after deducting all reasonable expenses,
including attorneys fees, incurred in the collection thereof.
If the Tenant determines, in its sole discretion, that the replacement, repair, restoration or
improvement of the Leased Premises is not economically feasible or in the best interests of the Tenant,
then in lieu of making such replacement, repair, restoration or improvement, Lessee shall have the option
to promptly purchase theLeased Premises pursuant to the Option to Purchase granted in Article XIV of
this Lease and such net proceeds shall be applied by the Tenant toward such payment to the extent
required for such payment. Any balance of the net proceeds remaining after paying such purchase price
shall belong to the Tenant In the event that the foregoing net proceeds will not entirely cover the
payments then due pursuant to Artiete XIV, Tenant may, at its option, apply the proceeds to the
remaining payments under this Lease, thereby shortening the Demised Term and the obligations
thereunder.
Section 2. Condemnation. If title to, or the temporary use of, the Leased Premises or aJ1Y part
thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental
body or by any person, firm or corporation acting pursuantto governmental authority, any condemnation
award or sale or proceeds of sale under threat of condemnation shan be property of the Tenant, and the
Tenant shall have the option of applying such award or proceeds in fulfillment of its obligations under
this Lease, or continue regular payments as provided for under this Lease and apply such award .or
proceeds as the Tenant shall see fit.
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ARTICLE VI
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Events of Default aIi.d Remedies
Section 1. Events of Default. Any of the following"shall be deemed an event of default:
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A. The failure to pay any installment of rent when the same becomes due and. the failure
continues for fifteen (15) days after written notice thereof is given to the Tenant.
B. The failure to perform or observe any other covenant, term or condition of this Lease to
be performed or observed by Tenant including 'compliance with the use restrictions
contained herein, and if curable, the failure continues for thirty (30) days after written
notice thereof is given to the Tenant. In the event the default cannot reasonablybe cured
within thirty (30) days, Tenant shall be granted such longer period of time as is
reasonably necessary to cure the defatilt'under the,circumstances.
C. Bankruptcy, reorganization, arrangement, insoLvency, receivership or liquidation
proceedings, or other proceedings for relief under any bankiuptcy law, or similar law for
the relief of debtors, are instituted by or againstthe Tenant and the same are not removed
or cured within sixty (60) days after receipt Dfwfltlen notice to the Tenant by the Lessor,
Section 2. Remedies.. Upon the occurrence of any event of default, Lessor or her successors in
interest may, at her or tbeir option, in addition to any other remedy or right they have hereunder or by law:
A. Re-enter tbe Premises, without demand or notice, and resume possession by an action in
law or equity and without tenninating this Lease. Lessor may rernoveall persons and
property from the Leased Premises and such property may be removed and stored at the
cost ()fthe Tenant.
B. Terminate this Lease at any time upon thirty (30) days additional notice to the Tenant without
cure by the Tenant. The Tenanes liability for damages shall survive such tennination. .The
parties hereto understand and agree that due to. the conditional sale naWre of this Lease,
Lessor will not be entitled to retain all payments made prior to such time as liquidated
damages, but, rather, must pursue foreclosure remedies as available under Indiana law.
The parties further agree that should this Lease terminate during any year after 2005 due to
Tenant's inability to fund the lease payments viatheidentified sources, Lessor shan credit an&reimburse
Tenant for aU lease payments made which exceed the "fair market rental va.Lue" of the Leased Pr'emises
for the pefiodoccupiedas then determined by either MichaeL C. Lady, Reily Burrell or, if neither is
available, an appraiser mutually agreed to by the parties hereto. Additionally, Lessor shall reimburse
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Tenant for the reasonable fair market value of any and all improvements to the Leased Premises made by
Tenant under the tenns hereof, as determined by the appraiser set forth above,
Section 3. Tenant's Remedies. If Lessor shall default in the performance of this Lease, the
Tenant shall have the right of specific performance against Lessor, in addition to any other rights or
remedies available at law or in equity.
ARTICLE VII
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Mechanic's Liens
The Lessor and the Tenant shall not permit any Statement ofIntention to hold a Mechanic's Lien
to be filed against the Leased Premises or any part thereof, nor against any interest or estate therein by
reason oflabor, service or materials claimed to have been performed orfumished to or for such party. If
such Statement ofIntention to hold a M~chanicrs Lien shall be filed, and is not removed or bonded over
within thirty (30) days, the other party to this Lease, at its option, may compel the prosecution ofan action
for the foreclosure of such Mechanic's Lien by the lienor. If any such Statement of Intention to hold a
Mechanic's Lien shall be filed and an action commenced to foreclose the lien, the party claimed to be
responsible for the lien shaH cause the lien to be released by the filing of a written undertaking with a
surety apprOved by the Court and shan pursue an order from the Court releasing the Leased Premises
from such lien. In the event the party claimed. to be responsible for the lien fails to take the actions
provided for herein, the other party may (but shaIl not be required to) take such action, and shall be
entitled to collect its damages, expenses and interest thereon from the other party hereto.
ARTICLE VIII
Surrender and Holdover
Upon the expiration or sooner termination of this Lease, the Tenant shall surrender to Lessor the
Leased Premises, together with all other property affixed to the Leased Premises (excepting trade
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fixtures), broom clean and in the same order and condition in which the Tenant received them, the effects
of ordinary wear and tear, acts of God, t:asualty, insurrection, not or public disorder excepted, subject to
the Option to Purchase provided for below. ill the event the Option to Purchase is not exercised, the
Tenantshatl, within thin:y(30) days of termination, remClveall ofthe Tenant's trade fixtures and personal
property from the Leased Premises. Any damage to the Leased Premises caused by such removal shall be
repaired by Tenant prior to the expiration of the Demised Temh At Lessor's option, ifthe Tenant fails to
remove such trade fixtures and personal property, then the same shall be deemed the property of Lessor
after fifteen (15) days' written notice thereof to Tenant lithe 'L'enant shall remain in possession of all 01'
any part of the Leased Premises after the expiration ofthe Demised Term, with"the consent of Lessor,
then the Tenant shall be a lessee from month to month at a reasonable fair market rental value, and shall
be subject to all other applicable covenants, terms ahd conditions hereof.
ARTICLE IX
AssignmentandSubletting
Exceptas otherwise specifically provided herein, Tenant shall not assign, mortgage, incumber or
transfer this Lease in whole or in part, or sublet the Leased Premises or any part thereof; nor grant a
license or'concession in con nectiontherewitb without the prior written consentofLessor, which consent
shall not be unreasonably withheld. This prohibition shaH include any act which" has the effect of an
assignment or transfer and which occurs by operation of law.
Notwithstanding the foregoing. the Tenant may: (i) sublet all ora portion of the Lt<ased Premises
to any governmental or non~profit entity Or (ii) sublet or temporarily grant the use of all or any portion bf
the residence located on the Leased Premises to private third parties, without the prior consent of the
Lessor. In the event of the grantor subletting ofaH or"any portion of the Leased Premises, the Tenant
shall remain responsible for making aU lease payments to the Lessor under the terms of this Lease.
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ARTICLE X
Advances and Interest
Upon the occurrence of any event of default, Lessor may, ifsuch.default has not been cured, cure
that default for the account of and at the expense of Ten ant. If Lessor in curing such default is compelled
to payor elects to pay any sum of money or do any acts which will require the payment of any sum of
money, the sum so paid or incurred shall be reimbursed by the Tenant upon demand by Lessor. All sums
as to which the Tenant is in default of payment shaH bear interest at the rate of ten percent (l0%) per
annum until paid.
ARTICLE XI
StatutOry Procedures
Section 1. Indiana Law. Lessor and the Tenant acknowledge and agree that this Lease is subject
to, and is to be governed by, the provisions of Indiana Code ~ 36-1-] O,which requires the circulation ofa
property owner's petition and a.public hearing on the need for this Lease and its tenns and conditions.
Notice of the hearing must be published pursuant to Indiana Code ~ 5~3~ 1. As required by Indiana Code
~ 36-1 ~ 10-] 3, the cost OfpllbHcation ofthe notice required for execution ofthis Lease must be paid by the
Lessor.
Section 2. Fiscal Body Approval. This Lease is subject to the approval of the Common CQuncil
of the City, the Township Baard of Clay Township and the Tenant's board upon conclusion of the public
nearing required by Indiana Code ~ 36-1-10-13.
Section 3. Validity Contest. The parties hereto acknowledge that any action to contest the
validity of this Lease, or to enjoin performance thereof, must be brought within thirty (30) days after
notice of publication of the execution of the Lease as provided for in Indiana Code ~ 36~1-10-15. In the
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event any action contesting the validity of .this Lease or enjoining the performance thereof is brought
during such thirty (30) day period, or at any time thereafter, and a court of competent jurisdiction finds
that this Lease is not valid or enjoins the performance thereof; the parties hereto shall, insofar as possible,
agree to place themselves in the position they were in prior to the execution of this Lease, each bearing
their own costs. Lessor shaU, in addition, be entitled to recover the fair market rental value of the Leased
Premisedor the period it was actually occupied by the Tenant, if any. Other than the foregoing. rental
value, the parties shallbe responsible for paying their own costs and expenses relating to the execution or
entering into ofthis Lease without recovering such costs from the other party.
Section 4. Annual Appropriation. The continuation of this Lease during the Demised Term or
any extension thereof shall be subject to annual appropriation by the Tenant, as required by Indiana law.
ARTICLE XII
Subordination to MortlZalles
Lessor shal1 not mortgage its interest, or any parttbereof, without the prior written consent of the
Tenant. If requested by the holder of any such mortgage or mortgages, the Tenant agrees to execute and
deliver to such holder an instrliment, in form and substance satisfactory to the holder, specificatly
subordinating this Lease to the lien of such mortgage or mortgages, subject to the conditions set forth
above. In the event the Lessor shall not comply with the terms of this Article, the Tenant shall have the
right (but not the obligation) to pay any lease-purchase payment provided for by this Lease directly to the
holder ohny mortgage on the Lea.sed Premises in order to bring Lessor into compliance herewith. In
addition, the Tenant shall receive from Lessor such information or documentation as is reasonably
necessary to determine Lessor's compliance'with this Article.
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ARTICLE XIII
Authority
Section 1. Lessor's Authoritv. Lessor (and each party executing on behalf of Lessor) represents,
covenants and warrants that it is fully authorized to enter into this transaction and to carry out the
obligations hereunder. This Lease has been dUlY authorized by Lessor and Lessor is fully empowered to
enter into the transactiolls contemplated herein. Lessor also represents, covenants and warrants that this
Lease is enforceable in accordance with its tenns subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and subject to the exercise Df
judicial discretion in accordance with general principals of equity. The individuals executing this Lease
are fully authorized to do so on behalf of Lessor.
Section 2. Tenaht's Certification. The Tenant represents, covenants and warrants that it is an
entity created under the authority of Indiana Code 9 36-1-7 by the City and the Township and is fully
authorized to enter into this Lease and to carry out the transactions contemplated hereby. As of the
Effective Date hereof, this Lease has been duly authorized by the Tenant, the City and the Township and
the appropriate officers of Ten ant have been directed and authorized to execute this Lease on its behalf.
The Tenant also represents, covenants and warrants that this Lease is enfOl:ceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors I rights generaUy and subject to the exercise of judicial discretion in accordance with general
principals of equity.
Section 3. Tenant's Tax Representations. In the event Lessor intends to qualify this Lease as an
obligation described in Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"), the
Tenant agrees and covenants to refrain from any action which would adversely affect, and to take such
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reasonable action so as to ensure, the treatment of this Lease as such an obligation, the interest on which
is not includable in the "gross income" ofthe holder for purposes offedera1 income taxation, All costs
necessary to qualify this Lease as such an obligation (including the costs of any bond counselor other
legal fees related thereto) shall be paid by Lessor, and Lessor shall indemnifY the Tenant frolll any
additional costs related thereto. The Tenant further covenants and agrees to execute such other
documents as are necessary to qualify the Lease as such. an obligation, or to otherwise restrict the
activities of the Tenant relating to the Leased Premises (so long as the use of the Leased Premises for
purposes allowed hereunder is not affected) as are reasonably required by Lessor or its counsel.
ARTICLE XIV
Cotion to Purchase
Section 1, Ootion. In consideration of the Tenant's entering into this Lease, and for other good
and valuable consideration, Lessor gives and grants to the Tenant an option to purchase (the HOption to
Purchasell) the Leased Premises and all fixtures, improvements and appurtenances attached thereto or
constructed thereon from Lessor at the end of the Demised Term. The purchase price for the exercise of
the Option shall be the sum of One Dollar ($1.00).
, Section 2. Exercise ofOotion. In theeventthe Tenant intends to exercise the Option, itshall give
notice in writing to Lessor within one hundred eighty (180) days prior to the ~nd of the Demised Term, or
within thirty (30) days following the end of the Demised Term of the Lease. Within fifteen (15) days of
the receipt of the notice of exercise of the Option to Purchase, Lessor shall furnish the Tenant with a
commitment for the issuance of an owner's policy oftitle insurance in the amount of the then~current fair
market value of the real estate and the improvements constituting the Leased Premises as reasonably
determined by the Lessor and the Tenant, or ifthey are unable to agree, as determined by independent
appraisal by an appraiser mutually acceptable to Lessor and Tenant. The Tenant shall have thirty (30)
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days after the receipt of such commitment to examine and objectto any defects affecting the marketability
of title to the Leased Premises. which shal1 be cured at the expense of Lessor. The Tenant shall receive a
,
,.
general warranty deed for the Leased Premises free and clear of a!lliens and encum brances except for the
lien of any taxes payable by the Tenant, if any, assessments, easements, and restrictions of record,
applicable zoning laws and the rights of the Tenant ~s tenant in possession. The Lessor shall bear all
costs of making title to the Leased Premises marketable, including the removal of all standard exceptions.
In the event that title to the Leased Premises cannot be made marketable, then theTenant shall have the
option of accepting title to the Leased Premises, terminating its notice of exercise of the Option to
Purchase, or taking all action reasonably necessary to make title mllfketable at the cost of Lessor. In the
event the Tenant exercises the Option to Purchase, the Tenant shall pay the costs of any insured closing it
requires, an updated survey (if any) and the costs of its attorneys fees, the costs of the owner's title
insurance policy, recordation arid trartsfer fees, and its attorneys and agents. Lessor shall pay the costs of
its attorneys and agents and shall cause all loans secured by the Leased Premises to be paid in fuU and
obtain and record any releasesofloans so paid prior to closing of the. Option to Purchase.
Section 3. Early Option. In addition to the Option to Purchase extended to the Tenant, the Lessor
also extends to the Tenant an option to purchase the Leased Premises on any annual lease payment date as
listed in Exhibit "B" by paying to Lessor one hundred percent (l 00%) of the then-outstanding principal
amount shown on such date (the "Early Option") alongwith any accrued interest then due and payable.
The Tenant may exercise the Early Option on any annual lease payment date and such exercise shall be
without prepayment penalty, premium Dr the payment of unaccrued interest. The Tenant shall exercise
the Early Option by giving written notice to the Lessor no later than fifteen (15) days prior to such annual
lease payment date. The procedures set forth in Section 2 above shall also apply to the exercise of the
Early Option.
17
Section 4. Deed Escrow. Upon execution of this Lease, Lessor hereby agrees.to execute a valid
and binding General Warranty Deed and other documents necessary to transfer ownership of the Leased
Premises to Tenant and shall place the same in the possession of the title insurance company issuing the
policy insuring the Tenantis interest in the Leased Premises, to be held an Me corded upon the exercise of
the Option to Purchase and/or successful completion of the ter111S of this Lease by the Tenant The
General Warranty Deed shaH contain a perpetual restrictive covenant requiring thatthe property shall be
used solely for.park and recreational facilities and purposes, and prohibiting the dev.elopment of tbe
Leased Premises for residential or commercial.purposes.
~ Section 5. P.l Zoning. As soon.aS practicabienfter the closing on the Leased Premises. Tenant
. . shnll initinte a rewi,. ottho Leased Premises to the N District or other then existing zoning.district
~.,..
which WQuld allow it to be used as contemplated in the recently adopted 2005-2010 Zone Improvement
Plan and Ordinance Z-411-05 AS AMENDED. Should Lessor desire to initiate such proceedings during
the Demised Term, a rezone bfthe Leased Premises to the P-l District Zoning or other compatible zoning
classification consistent with the. recently adopted 2005-2010 Zone Improvement Plan and Ordinance z.
471.05 AS AMENDED, Tenant shaH agree to and assist in the process but shaH not be required t6 pay
any fees involved in such process.
ARTICLBXV
Insurance
The Tenant shall,at its sole cost and expense, procure, and maintain throughout the Demised
Term~ fire and extended coverage insurance together with all,risk coverage, in an amount at least equal to
the total initial principal outstanding pursuant to this Lease as set forth :i11 Exhibit "B". Such cov~~ge
shaH name- Lessor as an additional named insured, and shall contain a clause that the insurer will not
cancel the policy without first giving Lessor at least fifteen (15) days prior written notice. In addition,
18
Tenant shall be responsible for procuring and maintaining all additional insurance coverage, including
comprehensive general liability and other coverage, which it deems necessary for its protection against
loss or damage, and shall name the Lessor as an additional named insured thereon. All fire and extended
coverage insurance which may be carried with respect to the Leased Premises shaH be endorsed with a
clause permitting waiver of rights of recovery prior to a loss so long as such a clause IS available. Lessor
hereby waives all claims for recovery from the Tenant for any loss or damage to the Leased Premises to
the extent such loss 'is insured by valid and collectible fire and extended coverage insurance policies in
standard form containing a waiver of claims endorsement. Lessor and Tenant waive any right of
subrogation which might otherwise exist in or accrue to any person on account ofloss or claim hereunder.
ARTICLE XVI
!,
General Provisions
Section ]. Relationship of Parties. Nothing herein shaH be deemed or construed by the parties
hereto nor by any third party as creating the relationship of principal and agent, partnership or joint
venturers between the parties hereto, it being expressly understood and agreed that this Lease shall not be
deemed to create any relationship between the parties hereto other than the relationship oflessorlseller
and tenant/purchaser.
Section 2. OuietEniovment. If the Tenant shall perform all the covenants and agreements herein
provided to oe performed on the Tenant's part, the Tenant shall, ataIl times during the Demised Term,
have the peaceable and quiet enjoyment of the possession of the Leased Premises without any manner of
hindrance from Lessor or any parties lawfully claiming under Lessor.
Section 3. Amendments. No amendments to this Lease shall be effective until first reduced to a
writing, approved and executed by Lessor an d Tenant's Board, and any and all steps necessary to comply
with at! applicable laws have been completed. Notwithstanding the foregoing and with written notice to
19
Lessor, Tenant, in its sole discretion, shall be allowed to modify the payment schedule to allow semi
annual, quarterly or monthly payments.
Section 3. Bindin~ Effect. This Lease shall extend to, be binding upon and inure to the benefit of
the parties hereto and each of their heirs, beneficiaries. personal representatives, successors and assigns
and transferees; provided, however, that this provision shall not be construed to pennit the assignment of
this Lease except as may otherwise be permitted hereby,
Section 4, Remedies Cumulative: Nonwaiver. The various rights and remedies herein contained
and reserved to each of the parties shall not be considered as exclusive of any other right or remedy of
suchpa.rt)i, but shall be construed as cumulative and shall be in addition to every other remedy now or
hereinafter existing at law, in equity, or by statute, and said rights and remedies may be exercised and
enforced concurrently and whenever and as often as occasion therefore arises. No delay or omission in
ex.ercising any right or power by either party shalUmpair any such right or power, or be construed as a
waiver of any default or as acquiescence thereto.
Section 5. Governinl! Law. The laws of the State of Indiana shaH govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceabiJity of any provision of this
Lease shall not affect or impair any other proVision, and such unenforceable provision shall be deemed
severable.
Section 6. 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)deposited in the United States mail by
certified or registered mail, postage prepaid:
Ifto Lessor, at:
JillL. Perelman
35 Brookside
Missoula, MT 59802
20
Copy to Jane"Merrill, at:
Jane B. Merrill
Attorney at Law
3105 E. 98th Street, Suite 170
Indianapolis, IN 46280
;.
If to the Tenant, at:
Carmel/Clay Bo.ard of Parks & Recreation
760 3rd Avenue SW, Suite 100
Carmel, IN 46032
Attn: Parks Director
Copy to. Debra M. Grisham, at: Debra M. Grisham
Attarney at Law
c/o Carmel/Clay Board of Parks & Recreation
760 3rd Avenue SW, Suite 100
Carmel, IN 46032
Such addresses may be changed by either party by written notice as provided above.
Section 7. Recordation. The parties hereto agree to. execute and record a memorandum of this
Lease in the form attached hereto as Exhibit He".
Section 8. Enforcement Cost. If either party to this Lease shall default in the performance of any
of its obligatians, and such default cantinues after the expiration of the notice or grace period provided for
herein, the other party may perf ann such obligation for the account and at the expense ofthe defaulting
party, without further notice. All costs incurred by the other party in performing such obligation and all
attorneys' fees and expenses of such party in enforcing any of the obligations hereof, shall be due and
payable by the defaulting party on demand.
Section 9. Further Assurances. The parties hereto agree to take all additional actions, including
executing any and all documents; as are required to give effect to this Lease and the legal rights created
therein.
Section 10. Effective Date. The Effective Date of this Agreemel)t shall be the date upon which
all required signatures have been entered below, and all legal requirements for the approval ofthis Lease
have been fulfilled.
21
Section 11. Multiple Countemarts. This Lease, and any amendments thereto, maybe executed in
multiple counterparts, and such multiple couriterparts shall constitute one and the same document.
iN WITNESS WHEREOF, Lessor and Tenant have caused their duly authorized officers to
execute this Lease as of the date and year first abqve written.
II
"LESSOR"
,~
("'B
y:~
"TENANT"
CARMELlCLA Y BOARD OF PARKS
AND RECREA nON
I C1 -' .
By: /~4..ttAMi."i. j' .- 7/. f).;,..~;J"VI
Stfsannah H. Dillon, President
ATTEST:
B~ Uhnr!d
. . nn.. ~~~~tary
.r~ 'E'Sfu<::.-r;tJstt:"'t-~ -.J \<:..t.()fLE~ Ut.....rr-
I ,
Efffective Date: September 21, 2005
Thisinstrumenl was prepare<1 by Brian C. Bosma, Attorney at Law, Kroger, Gardis& Regas, LLP,B,ank One
Center/Circle, 111 Monument Circle, Suite 900, Indianapolis, Indiana 46204-5125,
22 ,
EXHIBIT "N'
~;
LEGAL DESCRIPTION
35.14 Acre Parcel
A part ofthe Southwest Quarter of Section 32, Township 18 North, Range] East of the Second Principal Meridilln in
Clay Township, Hamilton County; Indiana being more particularly described as follows:
Commencing at the southwest comer of the Southwest Quarter of Section 32, Township 18 North, Range 3 East of the
Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence North 89 degrees 34 minutes 15 seconds
East (basis of bearing Instrument #94.13908) t.3 25.46 feet to the southwest comer ofthe Southeast Quarter of the
Southwest Quarter of said Section 32, said comer is the POINT OF BEGINNING of the herein described tract; thence
North 00 degrees 01 minute 33 seconds West 1,317.74 feet to the northwest comer of said quarter-quarter section; thence
North 89 degrees 28 minutes 41 seconds East 1,326.32 feet to tile northeast corner of said quarter-quarter section; thence
South 00 degrees 00 minutes 39 seconds West 31.86 fecton the east line of the Southwest Quarter of said Section 32 to
the northeast comer of that land described as Parcel 3B in Instrument #94-13908 and recorded in the Office of the
Hamilton County Recorder; thence South 89 degrees 34 minutes 15 seconds West 169.00 feet on the north line of said
parcel; thence South 00 degrees 00 ininutes 39 seconds West 1,288.04 feet, parallel with the east line of the Southwest
Quarter of said Section 32, to a point on the south line of said quarter section; thence South 89 degrees 34 minutes l5
second West 1,156.46 feet on the south line of said quarter section to the POINT OF BEGINNING, said tract contains
35.14 acres more or less.
23
EXHIBIT "B"
"
Lease Pavments '"
.,
Date Princi pal Interest Total Payment
9/21/2005 $462.706,48 $-0- $462.706.48
9/21/2006 395.523.44 67.183.04 462.706.48
9/21/2007 411.344.38 51.362.10 462.706.48
9/21/2008 427 .798.15 34.908.33 462.706.48
9/21/2009 444.910.06 17.796.40 462.706,46
Totals $2,142.282.51 $171.249.87 $2.313.532.38
24
EXHIBIT "ell
MEMORANDUM OF LEASE AGREEMENT AND
OPTION TO PURCHASE
THIS MEMORANDUM OF LEASE AGREEMENT AND OPTION TO
PURCHASE ("Memorandum") has been executed this 21 st day of September, 2005, by and
between Jill Louise Perelman ("Lessor"), and the Carmel/Clay Board of Parks and
Recreation, Hamilton County, Indiana, (the .'Park Board").
WITNESSETH THAT:
A. Lessor and the Park Board-have entered into a certain Lease Agreement
and Option to Purchase dated September 21, 2005 (the "Lease"), pursuant to which Lessor leased
to the Park Board, and the Park Board leased from Lessor, the follo\ying described real estate,
together with all ftxtures, improvements, and appurtenances attached thereto or located thereon,
located in Hamilton County, Indiana (the "Leased Premises"), being more particularly described
as follows:
SEE ATTACHED EXIDBIT A
B. The Lease is subject to and is governed by, the provisions ofIndiana Code
36-]-10.
C. Under the Lease, the Park Board is permitted at its own expense to make
any alterations, additions, repairs or improvements to the Leased Premises 'consistent with the
use of the Lease Premises for park and recreation purposes, and for certain other uses provided
under the Lease. .
D. As provided in the Lease. the Lessor and the Park Board shall not permit
any StatementofIntention to hold a Mechanic's Lien to be filed againstthe Leased Premises or
any part thereof, nor against any interest or estate therein by reason of labor, service or materials
claimed to have been performed or furnished to or far sUch party. If such Statement of Intention
to hold a Mechanic's Lien shall be filed, and is not removed or bonded over within thirty (30)
days, the other party to this Lease, at its option, may compel the prosecution of an action for the
foreclosure of such Mechanic's Lien by the lienor. Nothing in the Lease shall be deemed or
construed to constitute consent to, or a request to any party for, the performance of any labor or
service or the furnishing of any materials for the improvement, alteration or repairing of the
Leased Premises.
E. The Lessor is prohibited frOIll mortgaging her interest, or any part thereof,
in the Leased Premises, Without the prior written consent of the Park B.oard: In the event a
mortgage is allowed with the Park Board's cons~t, the ParkBoard has the right (but not the
obligation) to pay any lease payment provided forbythc Lease directly to the holder of any
mortgage on the Leased Premises.
F. The addresses of Lessor and the ParkBoard are set forth below, and
inquires concerning the Lease and the specific terms and conditions thereofmay be made to
Lessor or Lessee at such addresses:
Lessor:
Jill Louise Perelman
35 Brookside
Missoula, Montana 59802
cc:
Jane B. Merrill
Attorney at Law
3105 E. 98th St. Suite 170
Indianapolis, Indiana 46280
Lessee:
Carmel/Clay Bpard of Parks and Recreation
760.3Td Avenue SW, Suite 100
Carmel, Indiana 460~2
Attn: Park Board President
cc:
Debra Grisham
Attorney at Law
c/o CamiellClay Board of Parks and Recreation
760 3rd Avenue SW,Suite 100
Cannel, Indiana 46032
LESSOR
JILL LOUISE PERELMAN
By:
Jill Louise Perelman
STATE OF
COUNTY OF
)
)SS
)
By:
ATTEST:
Printed Name and Title
Before me, a Notary Public in and for said County and State, the _day of September, 2005,
personally appeared Jill Louise Perelman as Lessor, who acknowledged that that the foregoing
statements are true.
My Commission Expires:
, N atary Public
My County of Residence:
LESSEE
CARMEL/CLAY BOARD
OF PARKS AND RECREA nON
By:
Susannah H. DiLlon, President
STATE OF lNDIANA )
)SS
COUNTY OF HAMILTON )
Before me,- a Notary Public in and. for said COWlty and State, the _day .of September, 2005,
personally appeared Susannah H. Dillon, President and , representing the
Carmel/Clay Board of Parks and Recreation of Hamilton County, Indiana, as Lessee, who acknowledged
that that the foregoing statements are true.
, Notary Public
My Commission Expires:
My County of Residence:
This instrument was prepared by Brian C. Bosma, attorney-at-law, Kroger, Gardis & Regas, 111
Monument Circle, Suite 900, Indianapolis, Indiana 46204-5125, (317) 692-9000.
~:
EXHIBIT "A"
Legal Description
35.14 acre parcel
A part of the Southwest Quarter of Section 32, Township 18 North, Range J East of the Second Principal Meridian in
Clay Township, Hamilton County, Indiana being more particularly described as follows:
Commencing at the southwest comer of the Southwest Quarter of Section 32, Township 18 North, Range 3 East oftl1e
Second Principat Meridian in Clay Township, Hamilton County, Indiana; thence North 89 degrees 34 minutes 15 seconds
East (basis of bearing Instrument #94-13908) 1,325.46 feet to the southwest comer ofthe Southeast Quarter of the
Southwest Quarter of said Section 32, said comer is the POINT OF BEGINNiNG of the herein described tract; thence
North 00 degrees 01 minute 33 seconds West 1,317.74 feet to the northwest comer of said quarter-quarter section; thence
North 89 degrees 2& minutes 41 seconds East 1,326.32 feet to the northeast comer of said quarter-quarter section; thence
South 00 degrees 00 minutes 39 seconds West 31.86 feet on the east line of Ihe Southwest Quarter of said Section 32 to
the northeast comer of that land described as Parce13B in Instrument #94-13908 and recorded in the Office of the
Hamilton County Recorder; thence South 89 degrees 34 minutes 15 seconds West 169.00 feet on the north line of said
parcel; thence South 00 degrees 00 minutes 39 seconds West 1,288.04 feet, parallel with the eastHne of the Southwest
Quarter of said Section 32, to a point on the south line ofsaid quarter section; thence South 89 degrees 34 minutes 15
second West 1,156.46 feet on the south line of said quarter section to the POINT OF BEGINNING, said tract contains
35.14 acres more or less.