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HomeMy WebLinkAboutE. Lurie LLC/CRC/Office Space Rent/ Lease Agreement This Lease Agreement (the "Lease") is made as of the '6 day of September, 2008 (the "Lease Date"), between E. Lurie, LLC, an Indiana limited liability company (the "Landlord"), and The City of Carmel Redevelopment Commission (the "Tenant"). In consideration of the rent to be paid and the promises and obligations of Landlord and Tenant under this Lease, it is agreed as follows: Article 1. LEASE OF PREMISES Landlord hereby leases to Tenant and Tenant hereby leases from Landlord approximately 3,417 square feet of space located on the second floor of the Lurie Building (the "Building"), located at 30 W. Main Street, Carmel, Indiana, as more particularly depicted and/or described on Exhibit A (the "Premises"). Article 2. TERM Section 2.1. Term and Commencement Date The term of this Lease (the "Term") shall begin on {` ' bxr I , 2008 (the "Commencement Date"), and shall end on the date that is 60 months after the Commencement Date. Section 2.2. Holding Over If Tenant holds possession of the Premises or any portion thereof after the end of the Term, Tenant shall be deemed a tenant from month to month upon the terms of this Lease. Such tenancy may be terminated by either party upon not less than 30 days prior written notice to the other. Section 2.3. Grant of Approvals If any permit, license, or approval necessary for Tenant's construction, signage, or operation at the Premises is not issued or granted to Tenant within 14 calendar days after the Lease Date, or if any such permit, license, or approval is withdrawn, qualified, or conditioned in a manner unacceptable to Tenant, then Tenant may terminate this Lease by written notice to Landlord. Landlord agrees to cooperate with Tenant and any state, county, and municipal authorities in obtaining such permits, licenses, and approvals and shall execute any documents reasonably required for that purpose. Section 2.4. Entry Prior To Term Prior to the Commencement Date, Tenant may enter the Premises in order to inspect Landlord's construction, measure the Premises, construct the Tenant Improvements (as hereinafter defined), and install furniture, fixtures, and equipment, without obligation to pay Rent (as hereinafter defined) or any other charge. Tenant may use the space adjacent to the Premises on the second floor for staging equipment, furniture, and such other materials necessary to build out the Premises (the "Staging Premises"). Landlord may terminate Tenant's right to use the Staging Premises upon 7 days' written notice to Tenant. Article 3. RENT AND CAM 1 Section 3.1. Rent Subject to Section 7.2, Tenant agrees to pay to Landlord annual rental of $17.50 per square foot, payable in equal monthly installments of $4,983.12 (the "Rent"), on or before the first day of each calendar month during the Term, and prorated for the fractional portion of any month. Section 3.2. CAM Tenant agrees to pay to Landlord an annual fee of $0.71 per square foot as estimated CAM expenses, payable in equal monthly installments of $202.17, on or before the first day of each calendar month during the first year of the Term, and prorated for the fractional portion of any month. Landlord shall maintain and, within 30 days after each calendar year during the Term (including the calendar year in which the Term ends), an accounting of the actual CAM costs. Within 30 days after delivery of such accounting: (a) Landlord shall pay to Tenant any amount CAM expenses paid by Tenant above the actual expenses allocable to Tenant; or (b) Tenant shall pay to Landlord any amount in CAM expenses paid by Tenant below the actual CAM expenses allocable to Tenant; as the case may be. Tenant shall be responsible for paying only the actual CAM expenses, prorated to Tenant based on percentage the gross square footage of the Premises bears to the total gross square footage of the first and second floors of the Building; provided that in no event shall CAM expenses include any capital expenditures or improvements. Section 3.3. Annual CAM Adjustments At the beginning of each calendar year during the Term, Landlord shall deliver to Tenant an annual CAM in the form attached as Exhibit B, for the new year of the Lease and prorate the budgeted cost to the Tenant on a pro-rata basis based on the gross square footage of the Premises as a percentage of the total gross square footage of the first and second floor of the Building. Tenant agrees to pay to Landlord the adjusted CAM expenses subject to the conditions of Section 3.2. Article 4. TAXES Section 4.1. Personal Property Taxes Tenant, at its cost, shall pay all taxes on Tenant's personal property and trade fixtures located on or about the Premises that are assessed and payable during the Term. Section 4.2. Real Estate Taxes Landlord, at its cost, shall pay all real estate taxes and special assessments of any kind or nature levied or assessed upon or against the Premises, whether levied or assessed directly or indirectly; provided that Tenant shall obtain a real estate tax exemption for the Premises beginning with the real estate taxes first becoming a lien in 2009 and payable in 2010 and continuing until the end of the Term or earlier termination of this Lease. Article 5. UTILITIES On the Commencement Date, Landlord shall make available to the Premises water, sewer, electricity, and all other utilities reasonably required by Tenant. Tenant shall pay all charges for such utilities supplied to the Premises and used by Tenant during the Term. All utilities shall be separately metered to the Premises. Article 6. REPAIRS 2 Section 6.1. Landlord's Repairs Landlord shall: (a) maintain and repair, in good order and condition: (i) the exterior, roof, roof drains, gutters and downspouts, and structural portions of the Building, including, without limitation, the floor slab, subflooring, load bearing walls, and foundations (the "Structural Elements"); (ii) the common areas of the first and second floors of the Building, including, without limitation, all restrooms, stairwells, elevators, and floor and elevator lobbies (the "Common Areas"); (hi) all utility systems, including, without limitation, electrical, mechanical, plumbing, water, and sewer, up to the point of entry into or hook-up with the Premises (the "Utility.Systems"); and (iv) all other items required because of the act or omission of Landlord, its employees, agents, or contractors; and (b) provide and maintain master keying and security for the Building and the Premises. Section 6.2. Tenant's Repairs Except for reasonable wear and tear, Tenant shall repair and maintain the Premises in good order and condition. Tenant shall: (a) provide janitorial service to and for the Premises; and (b) maintain and repair: (i) the interior of the Premises, including, without limitation, wall coverings, flooring, and Tenant's personal property and equipment; and (ii) Tenant's exterior and interior signage. Tenant, after the expiration of the one-year contractor's warranty on the HVAC system, agrees to: (a) keep current an annual maintenance contract on the HVAC system; and (b) assure repair of all non-functioning components within the HVAC system; all as approved by Landlord. Article 7. ALTERATIONS Section 7.1. Improvements On the Commencement Date, Landlord shall deliver the Premises to Tenant in "white box" condition, together with all items described on the work letter attached as Exhibit C, including, without limitation, the demising wall. Tenant, at its cost (subject to Section 7.2) and with the approval of Landlord, which approval shall not be withheld unreasonably, may make such alterations, changes, and/or installations to or in the Premises as may be necessary or appropriate for Tenant's use of the Premises (the "Tenant Improvements"); provided that the Tenant Improvements may not impair the electrical or mechanical systems serving the Premises or the structural soundness of the Building. Section 7.2. Tenant Improvement Allowance Within 24 months after the Commencement Date, Landlord shall reimburse Tenant for the actual cost of the Tenant Improvements in an amount not to exceed $59,500.00 (the "Tenant Improvement Allowance"). If, after 24 months after the Commencement Date, Landlord has not reimbursed Tenant for the full amount of the Tenant Improvement Allowance, then: (a) the unreimbursed amount of the Tenant Improvement Allowance shall be amortized over the remainder of the Term, together with interest at 7.5% per annum; and (b) such amortized amount shall be credited against the Rent. Section 7.3. Communication Equipment Tenant, with the approval of Landlord, which approval shall not be withheld unreasonably, may install a satellite dish antenna and other communication equipment at, on, or in the Premises or the Building. If located upon the exterior of the Building, then such antenna or equipment shall be mounted or otherwise installed so that it will not damage the building. Tenant shall repair any damage caused by the installation or removal of such equipment. 3 Article 8. USE OF PREMISES AND EXCLUSIVITY Section 8.1. Permitted Use The Premises may be used and occupied for the sales, service, products, management, administrative, and other uses incidental or related, directly or indirectly, thereto, for Tenant and/or the Carmel Arts & Design District, and for such other uses to which Landlord gives its written consent, which consent shall not be withheld unreasonably. Tenant, with the approval of Landlord, which approval shall not be withheld unreasonably, may assign or sublease the Premises or any portion thereof; provided that Tenant may assign or sublease the Premises or any portion thereof to another agency or instrumentality of the City of Carmel without the approval of Landlord. In the event of an assignment or sublease by Tenant, Tenant shall remain liable to Landlord for the full amount of the Rent. Tenant, its officers, agents, employees, invitees, and licensees shall have non-exclusive use of the Common Areas. Section 8.2. Tenant's Compliance With Laws Tenant shall use and occupy the Premises so as to comply with all applicable laws and regulations pertaining to its use. Section 8.3. Landlord's Compliance With Laws Landlord's ownership and control of the Premises shall be in compliance with all laws and regulations now in force or which may hereafter be applied to ownership or control of real property. • Article 9. INSURANCE AND INDEMNITY Section 9.1. Tenant's Insurance Tenant shall maintain in full force and effect during the Term: (a) commercial general liability insurance against any and all claims and demands for damage to property or injury to persons or loss of life arising out of, related to the use of, or resulting from any accident occurring in, upon, or about the Premises, with a combined single limit coverage of not less than $2,000,000; and (b) any legally required workers' compensation insurance covering all of Tenant's employees working on the Premises. All such insurance shall name Landlord as an additional insured. Section 9.2. Landlord's Insurance Landlord shall maintain in full force and effect during the Term: (a) commercial general liability insurance against any and all claims and demands for damage to property or injury to persons or loss of life arising out of or related to: (i) the Building, other than the Premises, including, without limitation, the Structural Elements, the Common Areas, and the Utility Systems; and (ii) Landlord's activities on, or maintenance and repair of, the Premises with a combined single limit coverage of not less than $2,000,000; and (b) a policy of broad form fire and extended coverage insurance in an amount equal to the full replacement cost of the Building, including the Premises. All such insurance shall name Tenant as an additional insured. Section 9.3. Quality of Policies and Certificates All insurance required by this Lease shall be issued by an insurer with an A.M. Best's rating of 8+ or better. The parties shall deliver to each other, upon request, copies of certificates of insurance showing that insurance required by this Lease is in effect. All insurance shall require the insurer to notify Landlord and Tenant at least 30 days prior to cancellation, 4 amendment, or revision of coverage. Section 9.4. Waiver Of Subrogation Landlord and Tenant each waive any right to recover against the other for damage to the Premises or any part thereof or any property thereon, but only to the extent that such damage is covered by insurance actually carried or required to be carried by either Landlord or Tenant. This Section is intended to waive fully, and for the benefit of each party, any rights and claims which might give rise to a right of subrogation in any insurance carrier. Section 9.5. Blanket Policy Any policy of insurance may be maintained under a so-called "blanket policy" insuring other parties and other locations so long as the minimum insurance policy requirements and limits set forth above are maintained. Section 9.6. Tenant's Indemnification Except for damage or injury caused by the willful or negligent act or omission of Landlord on any person acting by, for, or on behalf of Landlord, Tenant shall indemnify, defend, and hold Landlord, its agents, and employees harmless from any and all liability for injury to or death of any person, or loss of or damage to the property of any person, and all actions, claims, demands, costs (including, without limitation, reasonable attorneys' fees and court costs), damages, or expenses of any kind arising therefrom which may be brought or made against Landlord or which Landlord may pay or incur by reason of the use, occupancy, and enjoyment of the Premises by Tenant, its agents, or employees. Section 9.7. Landlord's Indemnification Except for damage or injury caused by the willful or negligent act or omission of Tenant or any person acting by, for, or on behalf of Tenant, Landlord shall indemnify, defend, and hold Tenant, its agents, and employees harmless from any and all liability for injury to or death of any person, or loss of or damage to the property of any person, and all actions, claims, demands, costs (including, without limitation, reasonable attorneys' fees and court costs), damages, or expenses of any kind arising therefrom which may be brought or made against Tenant or which Tenant may pay or incur by reason of the ownership, maintenance, or use of the Premises by Landlord, its agents, or employees. Article 10. FIXTURES All equipment and other personal property of Tenant not permanently attached to the Building and/or the Premises shall remain the property of Tenant, and Tenant may remove all or any portion of such property from the Premises at any time. All signs, awnings, canopies, or other items included in or displaying any element of Tenant's trade dress shall remain the property of Tenant regardless of the location or means of attachment of such item, and Tenant may remove all or any portion of such items from the Premises at any time. Tenant agrees to repair any damage or signs of the attachment of such trade dress to the satisfaction of Landlord. Article 11. SIGNS Tenant, at its cost and in conformity with applicable laws and ordinances, shall have the right to erect upon or at the Premises, and thereafter maintain, remove, and/or replace: (a) exterior signs and/or canopies, either free standing or attached to improvements; (b) signs, 5 banners, posters, and other promotional materials consistent with the operation of Tenant's business; and (b) signs, logos, fixtures, and other items that are a part of Tenant's national or regional trade dress program. There shall be no additional cost, expense, and/or rental amount due for such usage, which usage may include, without limitation, the blade sign from the alley lot on the north side of the Building, panel signs inside the Building, elevator signs and exterior signs on entry doors to the Premises, the blade signs on the south side of the Building, and archway signs on the sidewalk between the Building and adjacent building. Tenant may replace its signs with those of any of its assignees. Article 12. CASUALTY If the Building, the Premises, or any improvements that are part of the Premises are damaged or destroyed by fire or other casualty, then Landlord promptly shall repair or rebuild the same to substantially their condition immediately prior to such damage or destruction. During the period of repair or rebuilding the Rent and other charges payable by Tenant under this Lease shall abate in proportion to the effect of the damage or destruction on Tenant's ability to conduct its business, as reasonably determined and agreed by Tenant and Landlord. If Landlord does not complete such repairs or rebuilding within 6 months after the date of such damage or destruction, then Tenant may terminate this Lease by delivering written notice to Landlord, whereupon Landlord promptly shall pay to Tenant any amounts owing to Tenant pursuant to Section 7.2. If such damage or destruction occurs during the last 12 months of the Term, and the cost of repair or rebuilding is 50% or more of the replacement cost of the Building, the Premises, and/or the improvements that are a part of the Premises, as the case may be, then, within 30 days after the date of such damage or destruction, Landlord or Tenant may terminate this Lease by delivering written notice to Tenant or Landlord, respectively, whereupon Landlord promptly shall pay to Tenant any amounts owing to Tenant pursuant to Section 7.2. Article 13. CONDEMNATION Section 13.1. Total Taking If the entire Premises is taken under the power of eminent domain by any public or private authority, or conveyed by Landlord to such an authority in lieu of a taking, then this Lease shall terminate as of the date possession of the Premises is required by such authority, whereupon Landlord promptly shall pay to Tenant any amounts owing to Tenant pursuant to Section 7.2. Section 13.2. Partial Taking If less than the entire Premises is taken under the power of eminent domain by any public or private authority, or conveyed by Landlord to such an authority in lieu of a taking, and such taking will, in Tenant's judgment, adversely affect Tenant's ability to conduct its business, then Tenant, within 30 days after receipt of notice of such taking or conveyance, may terminate this Lease by written notice to Landlord, whereupon Landlord promptly shall pay to Tenant any amounts owing to Tenant pursuant to Section 7.2. Such termination shall be effective on the date when possession of the portion of the Premises is required by the taking authority. Section 13.3. Restoration If this Lease is not terminated as a result of a taking described in Section 13.2, then this Lease shall continue in full force and effect, and Landlord promptly shall restore the remaining portion of the Premises and the improvements that are a part of the Premises to an architectural whole in substantially the same condition as prior to the taking. Rent and any other charges 6 • payable by Tenant under this Lease shall abate until the completion of the restoration and thereafter in proportion to the effect of the taking on Tenant's ability to conduct its business, as reasonably determined and agreed by Tenant and Landlord. Section 13.4. The Award All compensation awarded for the taking of the Premises or any portion thereof shall be the sole property of Landlord to the extent such compensation is awarded for diminution in the value of or loss of the fee; provided that Landlord shall not be entitled to, and Tenant shall have the sole right to: (a) any portion of any award allocable to: (i) damage to or depreciation or cost of removal of improvements, fixtures, and personal property installed at the Premises by, or on behalf or account of, Tenant; or (ii) moving and relocation expenses; and (b) any award made directly to Tenant. Article 14. DEFAULT BY TENANT Section 14.1. Events Of Default The occurrence of any of the following shall be an "Event of Default" by Tenant: (a) Nonpayment. Failure to pay any amount payable by Tenant to Landlord within 30 days after such payment is due; provided that any amount paid after such payment is due shall include interest at a rate of 10% per annum. (b) Other Obligations. Failure to perform any obligation of Tenant under this Lease, other than payment, and such failure continues for 30 days following Tenant's receipt of written notice of such failure from Landlord; provided that, if such failure reasonably cannot be cured within 30 days, then it shall not be an Event of Default if Tenant commences the cure within such 30-day period and thereafter diligently proceeds to complete the cure. Section 14.2. Remedies Upon Default Upon an Event of Default, Landlord, in addition to and without prejudice to any other rights or remedies it may have, shall have the right to: (a) re-enter and repossess the Premises or any part thereof, removing all persons and property, which property shall be stored in a public warehouse or elsewhere at the cost and risk of Tenant; (b) terminate this Lease and recover from Tenant all damages incurred by Landlord as a result of Tenant's default, less any amounts owing to Tenant pursuant to Section 7.2; (c) bring suit for: (i) the collection of the Rent or other amounts for which Tenant is in default; or (ii) the performance of any other obligation of Tenant hereunder; without entering into possession or terminating this Lease; (d) re-enter the Premises and, without terminating this Lease, relet the Premises, applying the rent it receives first to the payment of the reasonable expenses of such re-entry and reletting, second to the payment of the Rent accruing hereunder, and finally to future payments of the Rent. Whether or not the Premises are relet, Tenant shall remain liable for any deficiency in the Rent. Landlord shall use good faith efforts to relet the Premises and mitigate damages; • (e) terminate this Lease effective on the date that is 10 days following receipt by 7 Tenant of Landlord's notice of termination, whereupon Tenant shall be wholly discharged from this Lease; and (f) continue this Lease in effect and recover the Rent and other charges and amounts as they become due. Article 15. DEFAULT BY LANDLORD It shall be a default of this Lease for Landlord to fail to perform any of its obligations hereunder, and such failure continues for 30 days following Landlord's receipt of written notice of such failure from Tenant; provided that, if such failure reasonably cannot be cured within 30 days, then it shall not be a default if Landlord commences the cure within such 30-day period and thereafter diligently proceeds to complete the cure. Upon a default of this Lease by Landlord, Tenant may terminate this Lease, whereupon Landlord promptly shall pay to Tenant any amounts owing to Tenant pursuant to Section 7.2 Article 16. SUBORDINATION AND NON-DISTURBANCE Tenant shall subordinate this Lease to the interest of any lien of any deed of trust or mortgage now or hereafter placed upon Landlord's interest in the Premises; provided that Landlord procures from the holder of any deed of trust or mortgage affecting the Premises an agreement signed by such holder providing that: (a) so long as Tenant is not in default hereunder beyond the applicable cure period: (i) Tenant's tenancy shall not be disturbed; (ii) Tenant's rights under this Lease shall not be affected by any default under such deed of trust or mortgage; and (iii) Tenant shall not be named as a defendant in any foreclosure proceeding; and (b) in the event of re-entry under any foreclosure under any such deed of trust or mortgage, or a granting of a deed in lieu thereof, any trustee, mortgagee, or purchaser of Landlord's interests shall assume the obligations of Landlord under this Lease. Landlord shall use good faith efforts to obtain a so-called "non-disturbance agreement" containing the provisions set forth in this Article from any interest which, as of the date hereof, is superior to the leasehold interest of Tenant hereunder. Landlord and Tenant shall be responsible for their respective legal costs associated with fulfillment of this requirement. Article 17. QUIET ENJOYMENT Landlord agrees that, so long as Tenant is paying the Rent and performing its other obligations under this Lease, Tenant shall have peaceful and quiet enjoyment of the Premises throughout the Term. Article 18. HAZARDOUS MATERIALS Section 18.1. Hazardous Materials The term "Hazardous Materials" shall mean any hazardous, toxic, or dangerous substance, waste, contaminant, pollutant, gas, or material, including, without limitation, gasoline, waste oil, and other petroleum products and constituents thereof, which are now or may become regulated under any federal, state, or local statute, regulation, ordinance, or other law now or hereafter in effect, including, without limitation, any substance, waste, or material which is now or hereafter: (a) designated as a "hazardous substance" under the Federal Water 8 Pollution Control Act and/or the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"); (b) designated as a hazardous waste or regulated substance pursuant to the Resource Conservation and Recovery Act; (c) designated or listed as a hazardous material under the Hazardous Material Transportation Act; or (d) in any way regulated as a hazardous material or toxic substance under the laws of the State of Indiana. Section 18.2. Indemnification In addition to the specific provisions of this Lease concerning indemnification and without prejudice to any rights and remedies of the parties thereunder, the parties further grant to each other the following Hazardous Materials indemnification. (a) Landlord and its successors, assigns, trustees, beneficiaries, and legal representatives shall protect, indemnify, defend, and hold harmless Tenant, its officers, directors, shareholders, representatives, and their respective successors and assigns from and against all judgments, suits, proceedings, liabilities, losses, costs, judgments, orders, obligations, damages, expenses, or claims (whether by third parties or governmental authorities) arising out of or in any way relating to the existence of any Hazardous Materials placed on, in, or under the Premises or the Building by any person or entity other than Tenant or any person or entity acting for, by, or through Tenant. This indemnity includes, without limitation, remedial, removal, response, abatement, cleanup, legal, investigative, and monitoring costs, penalties, fines, and disbursements (including, without limitation, attorneys', consultants', paralegal and experts' fees and court costs) of any kind whatsoever, which may at any time be • imposed upon or incurred by any indemnitee arising, directly, or indirectly: (i) from requirements of any federal, state, or local environmental law; (ii) in connection with claims by government authorities or third parties related to the condition of the Premises or the Building; and/or (iii) from the presence or existence of Hazardous Materials on, in, or near the Premises or the Building; including, without limitation, all consequential damages. (b) Tenant and its successors, assigns, trustees, beneficiaries, and legal representatives shall protect, indemnify, defend, and hold harmless Landlord, its officers, directors, shareholders, representatives, and their respective successors and assigns from and against all judgments, suits, proceedings, liabilities, losses, costs, judgments, orders, obligations, damages, expenses, or claims (whether by third parties or governmental authorities) arising out of or in any way relating to the existence of any Hazardous Material placed on, in, or under the Premises or the Building by Tenant or any party acting for, by, or through Tenant. This indemnity includes, without limitation, remedial, removal, response, abatement, cleanup, legal, investigative, and monitoring costs, penalties, fines, and disbursements (including, without limitation, attorneys', consultants', paralegal, and experts' fees and court costs) of any kind whatsoever, which may at any time be imposed upon or incurred by any indemnitee arising, directly or indirectly: (i) from requirements of any federal, state, or local environmental law; (ii) in connection with claims by government authorities or third parties related to the condition of the Premises or the Building; and/or (iii) from the presence or existence of Hazardous Materials on, in, or near the Premises; including, without limitation, all consequential damages. (c) In the event that any investigation, monitoring, containment, cleanup, removal, remediation, restoration, or other work of any kind or nature (the "Remedial Work") is required, reasonably necessary, or desirable under any applicable federal, state, or local law or regulation, any judicial order, or by any governmental or non-governmental entity or person because of, or in connection with, the current or future presence, suspected presence, release, or suspected release of a Hazardous Material in or into the air, soil, groundwater, surface water, 9 or soil vapor at, in, about, under, or within the Premises or the Building (or any portion thereof), the indemnitor, within 30 days after written demand for performance thereof by the indemnitee (or within a shorter period of time as may be required under any applicable law, regulation, order, or agreement), shall commence to perform, or cause to be commenced, and thereafter diligently prosecute to completion, all such Remedial Work. All Remedial Work shall be performed by one or more contractors, approved in advance in writing by the indemnitee, and under the supervision of a consulting engineer approved in advance in writing by the indemnitee. All costs and expenses of the Remedial Work shall be paid by the indemnitor. In the event the indemnitor fails timely to commence or cause to be commenced, or fails diligently to prosecute to completion, the Remedial Work, the indemnitee may, but will not be obligated to, cause the Remedial Work to be performed, and all costs and expenses thereof, or incurred in connection therewith, shall be reimbursed by the indemnitor. (d) Nothing contained in this Section shall prevent or in any way diminish or interfere with any rights and remedies, including, without limitation, the right to contribution, which either party may have against the other party or against any of its predecessors or successors in interest, or any other party under CERCLA, as it may be amended from time to time, or of other applicable federal, state, or local laws. Article 19. MISCELLANEOUS Section 19.1. Notices All notices, demands, and communications called for in this Lease shall be given by registered or certified United States mail or nationally recognized express mail carrier, return • receipt requested, to the following address or to such other address as Landlord or Tenant may designate by written notice to the other pursuant to this Section: If to Landlord: E. Lurie, LLC 30 West Main Street Carmel, Indiana 46032 Attn: Evan Lurie If to Tenant: The City of Carmel Redevelopment Commission One Civic Square Carmel, Indiana 46032 Attn: Les Olds With copy to: Wallack Somers & Haas One Indiana Square, Suite 1500 Indianapolis, Indiana 46204 Attn: Karl P. Haas Notice or other communication shall be deemed given when received or refused by the addressee. Section 19.2. Force Maleure If either party is delayed or hindered in or prevented from performing any act or obligation required by this Lease by reason of strikes, lockouts, unavailability of materials, failure of power, restrictive governmental laws or regulations, riots, insurrections, war, or other reason beyond its control, then performance of such act or obligation shall be excused for the 10 period of the delay, and the period for the performance of such act or obligation shall be extended for a period equivalent to the period of the delay. The failure to make payments required under this Lease due to lack of funds shall not be considered a cause beyond the control of the party failing to pay. Section 19.3. Limitation of Liability Except for a loss covered by insurance and as expressly set forth in this Lease, and to the extent permitted by applicable law, under no circumstances shall either party be liable to the other under this Lease for special, indirect, incidental, or consequential damages, including, without limitation, anticipated or actual loss of profits, loss of time or other losses, whether in tort, breach of contract, or otherwise, even if that party has been informed of the possibility of such damages. At no time shall Tenant ever be responsible and/or liable for any amount of monies above and beyond the amounts due for rent hereunder. Section 19.4. Brokers Any brokerage commissions and finders' fees payable with respect to this Lease shall be paid by Landlord. Landlord agrees to indemnify and hold Tenant harmless from all claims, fees, costs, damages, and expenses, including, without limitation, attorneys' fees and court costs, associated with any claim for a brokerage commission or similar fee related to this Lease. Section 19.5. Litigation Between Parties In the event of any litigation or other dispute resolution proceedings between Landlord and Tenant arising out of or in connection with this Lease, the prevailing party shall be reimbursed for all reasonable costs, including, without limitation, accountants', paralegal, and attorneys' fees and court costs, incurred in connection with such proceedings (including, without limitation, any appellate proceedings), or in connection with the enforcement of any judgment or award rendered in such proceedings. Section 19.6. Surrender Tenant shall surrender peaceful and quiet possession of the Premises to Landlord at the end of the Term or earlier termination of this Lease. Any personal property remaining on the Premises 15 days after the expiration of the Term or earlier termination of this Lease shall be deemed abandoned and become the property of Landlord. Section 19.7. Entire Agreement This Lease contains all the representations and the entire understanding between the parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda, or agreements are replaced in total by this Lease. This Lease may be modified only by an agreement in writing signed by the parties hereto. Section 19.8. Governing Law This Lease shall be construed and interpreted in accordance with and be governed by the laws of the State of Indiana. Section 19.9. Successors and Assigns • The provisions of this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns. Section 19.10.Zoning, Good Title, Environmental, and ADA Landlord represents and warrants to Tenant that all of the following are true as of the Lease Date and shall be true as of the Commencement Date and throughout the Term. 11 (a) Landlord is the fee owner of the Premises and has full right and lawful authority to execute this Lease and perform the obligations of Landlord herein contained without the consent or joinder of any other party; (b) The Premises is not subject to any easement, restriction, zoning ordinance, or similar private or governmental regulation which would prevent or restrict its use as permitted herein, that no such action is threatened or pending, and the Premises is presently zoned for the use as permitted herein. If, at any time after the Lease Date, it is discovered by Tenant that the Premises is not suitably zoned, then Tenant shall have the absolute right to terminate this Lease without penalty or consequence, whereupon Landlord promptly shall refund all monies paid by Tenant hereunder, including, without limitation, any amounts owing to Tenant pursuant to Section 7.2; (c) Landlord has received no notice and/or knowledge of Hazardous Materials originating on or outside of the Premises or the Building which affect the Premises; and (d) Landlord shall be solely responsible for maintaining the Premises and the Building, including, without limitation, the Structural Elements, the Common Areas, and the Utility Systems, in compliance with all ADA laws and regulations. Article 20. GENERAL PROVISIONS Section 20.1. Counterparts and Facsimile Signatures This Lease may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile versions of original signatures of this Lease shall be considered original signatures. Section 20.2. Authority The undersigned persons executing this Lease on behalf of Landlord and Tenant represent and certify that: (a) they fully are empowered and duly are authorized by all necessary action of Landlord and Tenant, respectively, to execute and deliver this Lease; (b) they have full capacity, power, and authority to enter into and carry out this Lease; and (c) the execution, delivery, and performance of this Lease duly have been authorized by Landlord and Tenant, respectively: Section 20.3. Headings All headings and sections of this Lease are inserted for convenience only and do not form a part of this Lease, or limit, expand, or otherwise alter the meaning of any provision hereof. Section 20.4. Non-Drafting Party This Lease shall be deemed to be jointly drafted by all of the parties hereto and shall not be construed against any party or group as the drafters hereof. Each of the parties hereto acknowledges that such party fully understands the terms and conditions of this Lease. 12 Section 20.5. No Third-Party Beneficiaries Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone other than the parties hereto. Section 20.6. Waiver of Contractual Right The failure of any party to enforce any provision of this Lease shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Lease. Section 20.8. Severability If any provision of this Lease shall be invalid or unenforceable for any reason, then the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. Section 20.9. Exit Agreement At the end of the Term or earlier termination of this Lease, there shall be no further obligation on the part of Tenant to renew this Lease or subsidize the Landlord in any manner. Landlord shall not solicit any financial support from Tenant at any time. [Signature page to follow.] IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date first above written. LANDLORD: E. Lurie, By: _ _sr r . Lurie, Member TENANT: The City..of-Carrel Redevelopment Commission Ronald E. Carter, President i 13 EXHIBIT A DEPICTION AND/OR DESCRIPTION OF THE PREMISES ) EXHIBIT B CAM BUDGET Budget for Calendar Year 2008 OPERATING EXPENSES MONTHLY EST. COSTS ADMINISTRATIVE • ADVERTISING 0 BANK CHARGES 50 CONTRIBUTIONS & DUES 0 MANAGEMENT FEES $100.00 MISC ADMIN EXP $100.00 PERMITS & LICENSES $ 25.00 POSTAGE, SHIPPING & MISC $ 25.00 PROFESSIONAL FEES $200.00 SECURITY/ALARMS $125.00 SIGNAGE 0 TELEPHONE 0 TOTAL ADMIN $575.00 FIXED INSURANCE $200.00 PROPERTY TAXES $250.00 TOTAL FIXED $1725.00 UTILITIES ELECTRICTY $100.00 WATER/SEWER $0 TOTAL UTILITIES $100.00 MAINTENANCE CLEANING SERVICES & SUPPLIES $150.00 DECORATING/PAINTING $25.00 ELECTR.REPAIR/SUPPLIES $40.00 ELEVATOR CONTRACT& MAINTENANCE $250.00 HVAC CONTRACT $75.00 HVAC MAINTENANCE $50.00 LOCKS/KEYS $25.00 MAINT SUPPLIES/REPAIRS/LABOR $250.00 PEST CONTROL $50.00 ROOFING 0 TRASH REMOVAL $100.00 SNOW REMOVAL $25.00 WINDOW CLEANING $ 50.00 PLANTS/LANDSCAPING 0 (City of Carmel) TOTAL MAINTENANCE $1,090.00 Total Estimated Monthly Operating Costs $1765.00 Total Estimated CAM Cost Per Square Foot Per Month $ 0.71 EXHIBIT C COPY OF WORK LETTER 1 First Amendment to Lease Agreement This First Amendment to Lease Agreement (the "Amendment"), executed this 1st day of April, 2010, by and between E. Lurie, LLC, an Indiana limited liability company (the "Landlord"), and The City of Carmel Redevelopment Commission (the "Tenant"), WITNESSES: Recitals WHEREAS, Landlord and Tenant have executed that certain Lease Agreement dated September 8, 2008 (the "Agreement"); WHEREAS, Tenant seeks to lease additional space in the Building; and WHEREAS, the parties desire to enter into this Amendment; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, Landlord and Tenant agree as follows: 1. Lease of Premises. Article 1 of the Agreement hereby is amended and restated in its entirety as follows: "Article 1. LEASE OF PREMISES Section 1.1. Original Premises Landlord hereby leases to Tenant and Tenant hereby leases from Landlord approximately 3,417 square feet of space located on the second floor of the Lurie Building (the "Building"), located at 30 W. Main Street, Carmel, Indiana, as more particularly depicted and/or described on Exhibit A-1 (the "Original Premises"). Section 1.2. Additional Premises Landlord hereby leases to Tenant and Tenant hereby leases from Landlord approximately 2,399 square feet of space located on the second floor of the Lurie Building (the "Building"), located at 30 W. Main Street, Carmel, Indiana, as more particularly depicted and/or described on Exhibit A-2 (the "Additional Premises"). The Original Premises and the Additional Premises, collectively, are the "Premises"." 2. Term and Commencement Date. Section 2.1 of the Agreement hereby is amended and restated in its entirety as follows: "Section 2.1. Term and Commencement Date The term of this Lease with respect to the Original Premises (the "Term") shall begin on October 1, 2008 (the "Commencement Date"), and shall end on the date that is 60 months after the Commencement Date. The term of this Lease with respect to the Additional Premises (the "Additional Premises Term") shall begin on April 1, 2010, and shall end on upon the expiration of the Term." 3. Rent. Section 3.1 of the Agreement hereby is amended and restated in its entirety as follows: "Section 3.1. Rent Subject to Section 7.2, Tenant agrees to pay to Landlord annual rental of: (a) $17.50 per square foot, payable in equal monthly installments of $4,983.12 on or before the first day of each calendar month during the Term, and prorated for the fractional portion of any month; and (b) $15.00 per square foot, payable in equal monthly installments of $3,000.00 on or before the first day of each calendar month during the Additional Premises Term, and prorated for the fractional portion of any month (collectively, the "Rent")." 4. CAM. The last sentence of Section 3.2 of the Agreement hereby is amended and restated in its entirety as follows: "Tenant shall be responsible for paying only the actual CAM expenses, prorated to Tenant based on: (a) percentage the gross square footage of the Premises bears to the total gross square footage of the first and second floors of the Building; and (b) the period of Tenant's occupancy and possession of the Additional Premises; as the case may be; provided that in no event shall CAM expenses include any capital expenditures or improvements." 5. Real Estate Taxes. Section 4.2 of the Agreement hereby is amended and restated in its entirety as follows: "Section 4.2. Real Estate Taxes Landlord, at its cost, shall pay all real estate taxes and special assessments of any kind or nature levied or assessed upon or against the Premises, whether levied or assessed directly or indirectly; provided that Tenant shall obtain a real estate tax exemption for: (a) the Original Premises beginning with the real estate taxes first becoming a lien in 2009 and payable in 2010; and (b) the Additional Premises beginning with the real estate taxes first becoming a lien in 2011 and payable in 2012; and, in each case, continuing until the end of the Term or earlier termination of this Lease." 6. Improvements. The first sentence of Section 7.1 of the Agreement hereby is amended and restated as follows: "On the Commencement Date, Landlord shall deliver the Original Premises to Tenant in "white box" condition, together with all items described on the work letter attached as Exhibit C, including, without limitation, the demising wall. On April 1, 2010, Landlord shall deliver the Additional Premises to Tenant "as is"." 7. Permitted Use. Section 8.1 of the Agreement hereby is amended and restated as follows: "Section 8.1. Permitted Use The Premises may be used and occupied for general office use, including, without limitation, the sales, service, products, management, -2- administrative, and other uses incidental or related, directly or indirectly, thereto, for Tenant and/or the Carmel Arts & Design District (the "Arts District"), for uses consistent with other uses within the Arts District, and for such other uses to which Landlord gives its written consent, which consent shall not be withheld unreasonably. Tenant, its officers, agents, employees, invitees, and licensees shall have non-exclusive use of the Common Areas." 8. Assignment. The following hereby is added to the Agreement as Section 8.1.1: "Section 8.1.1. Assignment and Sublease Tenant, with the approval of Landlord, which approval shall not be withheld unreasonably, may assign or sublease the Premises or any portion thereof; provided that Tenant may assign or sublease the Premises or any portion thereof to: (a) another agency or instrumentality of the City of Carmel; or (b) Pedcor Commercial Development or any entity affiliated with, or controlled by, any Pedcor Commercial Development; in either case, without the approval of Landlord. In the event of an assignment or sublease by Tenant, Tenant shall remain liable to Landlord for the full amount of the Rent. Landlord hereby agrees to approve or disapprove, which approval shall not be withheld unreasonably, any proposed sublease or sub-sublease of the Premises or any portion thereof, including, without limitation, any proposed sublease or sub-sublease that would extend beyond the Term, in which case Landlord would enter into a direct lease with the proposed sublessee or sub-sublessee for any period beyond the Term." 9. Parking. Article 19 of the Agreement hereby is amended to include the following as Section 19.11: "Section 19.11. Parking At all times throughout the Additional Premises Term, Landlord shall provide to Tenant free of charge the exclusive use of four contiguous parking spaces located on the real estate of which the Building is a part (the "Real Estate"), which parking spaces are more particularly depicted and/or described on Exhibit D (the "Parking Spaces"). Tenant's use of the Parking Spaces shall be subject to: (a) all applicable laws and ordinances; and (b) all reasonable written rules and regulations for the use of parking spaces on the Real Estate that are delivered from time to time by Landlord to Tenant; provided that such rules and regulations are of general applicability to all tenants, occupants, or users of such parking spaces." 10. Interpretation. All references in the Agreement to the "Premises" or the "Term" shall be interpreted in a manner that is consistent with the amended Article 1 of the Agreement, as stated in Section 1, and the amended Section 2.1 of the Agreement, as stated in Section 2. 11. Exhibits. Exhibit A of the Agreement is replaced, and superseded in its entirety, by Exhibit A-1, attached hereto. Exhibits A-1, A-2, and D, attached hereto, are incorporated herein by reference. 12. Miscellaneous. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Indiana. All capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such words in the Agreement. In the event -3- of any conflict between the Agreement and this Amendment, the terms and conditions of this Amendment shall control. Except as expressly provided in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first above written. LANDLORD: E. LURIE, LLC 4111V� By: Evan S. Lurie, Member TENANT: THE CITY OF CARMEL REDEVELOPMENT COMMI vie r' i By: Ronald E. Carter, President -4- EXHIBIT A-1 DEPICTION AND/OR DESCRIPTION OF THE ORIGINAL PREMISES 1 EXHIBIT A-2 DEPICTION AND/OR DESCRIPTION OF THE ADDITIONAL PREMISES 1 u u _^ s Gti V } Q N 0 V C) O (DJ 15)1) ® III 11 IIII " - frredrold 917.7 7 di 1 ,, to ,/#0/001 di 11 ,1 A , ,001d,„ fe".4 A 1 k e#4.; -pry A07 lip 4 PAgt/tAiridort et rzi o o I E. owl in- en vl v 'b A I' ® ill N � -- PO __ _ ~mat oi/ ec„....4.,,,s:4 1 w-nc21-a.-_ - y 6 yp e? 4/0„, S U x et ' A ti m 0— _ it_______ ‘ I bit,n 40 t) I I r=1 y ay : o C--- ��, I ''� �1 ��" _ • _ -. 6. � I I IIII I:. I co M O O /III 0 0000 O r b m c • o j- c ) EXHIBIT D DEPICTION AND/OR DESCRIPTION OF THE PARKING SPACES