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HomeMy WebLinkAboutLease Agreement & Option to Purchase ;; ,,% ~6~ 0e.~ LEASE AGREEMENT AND OPTION TO PURCHASE .:' 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 ~.. ... 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 .~: . 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 " ... 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 " ',. 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 .. '" conditions set. forth inthePirst Right and this Lease so that it may accomplish its goal to serve new ..... 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 ;,; Premises :'," 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, ,. .', 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. 2 ,;~ 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 ,.. ~.. 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 .'. ~., commercial purposes. The deed transferring title to the Leased Premises to Tenant as provided for in this .. " .., '. 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. 3 .. ~. r 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 4 :~~ 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 5 Purchase set forth below. ,,C. t; Section 2, Maintenance. Tenant shall beresponsible for making all repairs necessary to maintain .:. " 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 6 " 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 7 " ." termination of this Lease Agreement. ; :~ Section 3. Mutu~1 Release. Lessor and the Tenant do hereby release the other from allliabiHty " f- 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 8 '. claim [Q be applied to the prompt replacement, repair, restoration or improvement ofthe Leased Premises, " ~'. 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. 9 '. ~;.: ~~: ARTICLE VI " , Events of Default aIi.d Remedies Section 1. Events of Default. Any of the following"shall be deemed an event of default: ~., ; 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 10 ~. 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 l'~ 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 11 ::'. 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. 12 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 13 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. 14 i 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 15 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) 16 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.