E. Lurie/UTL/Lease for office space Lease Agreement
This Lease Agreement (the "Lease") is made as of the Irk day oleXt . 2013
(the "Lease Date"), between E. Lurie, LLC, an Indiana limited liability company (the
"Landlord"), and the City ol'Carmel, Indiana, by and through its Board of Public Works and
Safety (the "Tenant").
In consideration of the rent to be paid, the national reputation among art collectors of
Evan Lurie and the Lurie Gallery located on the first floor of the Building (the "Lurie
Gallery"), Evan Lurie's commitment to the City of Carmel and the revitalization and growth
of the Arts and Design District, and the promises and obligations of Landlord and Tenant
under this Lease, it is agreed as follows:
Article I . LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
approximately 6,372 square feet of space located on the second floor of the Lurie Building
(the "Building"), located at 30 W. Main Street, Carmel, Indiana, as legally described and
graphically illustrated on Exhibit A (the "Premises") together with the right to use all
Common Areas being all public areas in the Building, including but not limited to restrooms,
lobbies, stairwells and elevators on the first and second floors.
Article 2. TERM
Section 2.1 . Term Commencement Date and Option to Extend
Subject to Tenant's receipt of all necessary municipal, governmental or other required
approvals and consents and permits (including, but not limited to, building permits) and
Tenant's ability to begin construction of the Tenant Improvements (as defined herein)
(collectively the "Commencement Dale Conditions"), the term of this Lease (the "Term")
shall begin on August 1, 2013 (the "Commencement Date "), and shall end on January 31,
2018 (the "Termination Date"). The Commencement Date shall be extended until such time
as the Commencement Date Conditions are satisfied and the Termination Date shall be
extended for the same period of time. Landlord currently leases a portion of the Premises to
the City of Carmel Redevelopment Commission ("CRC") pursuant to a Lease Agreement
dated September 8, 2008, as amended (the "Expiring Lease"), which expires September 30,
2013. Landlord agrees that the Expiring Lease shall terminate on the earlier of (i) the
Commencement Date; or (ii) September 30, 2013. Landlord further agrees Landlord shall
enter into an agreement with the CRC and/or the City of Carmel with respect to Landlord's
obligation to pay CRC the Tenant Improvement Allowance as provided in Section 7.2 of the
Expiring Lease in the amount of$59,500.00. Such Tenant Improvement Allowance shall be
a credit against rent due under this Lease, to be applied against the monthly rent installments
in the amount of$1,000.00 per month until the last month of the original Term when a credit
equal to the remaining due but unpaid balance of the Tenant Improvement Allowance shall
be applied as a credit against the monthly rent due in the last month of the original Term.
Notwithstanding any other provision of this (.,ease, all payment obligations of the
Tenant pursuant to this (.,ease shall be subject to annual appropriation by the fiscal body
governing the Tenant or other appropriate fiscal body.
Notwithstanding the foregoing, Landlord hereby grants to Tenant an option to extend
the term for two (2) successive, four (4) year periods (each an "Extension Term"). Each
Extension Term, if exercised, shall be (i) upon the same terms and conditions contained in
the Lease for the initial term except for this provision giving the renewal option and rent; and
(ii) subject to any amendments that the parties agree to in writing. Such options shall be
exercised by Tenant's deliver_), to Landlord, written notice to extend for one (1) four (4) year
period, delivered to Landlord no later than six (6) months prior to the expiration of the then
current term, whether the initial Tenn or an extension term. In no event shall Tenant be
obligated to extend this Lease.
In the event Tenant elects to exercise its option to extend the term of this Lease, the
parties agree that the annual rent for such extension shall be an amount equal to the lesser of
(i) three percent (3%) above the Rent for the then current Term; or (ii) the annual rent for the
last year of the then current Term increased in the same proportion that the BLS Index (as
hereinafter defined) averaged for the six (6) month period immediately preceding the
commencement of the extension term has increased over the BLS Index published and
averaged for the six (6) month period immediately preceding the Commencement Date. The
monthly installment of rent during the extension term shall be an amount equal to one twelfth
(1/12) of the annual rent during the extension term.
As used in this Lease. "BLS Index" shall mean the Revised Consumer Price Index for
Urban Wage Earners and Clerical Workers, United States, Midwest Average published by
the Bureau of Labor Statistics, United States Department of Labor. If the Bureau of Labor
Statistics shall discontinue publication of said BLS Index or shall adopt a new method of
computing the BLS Index, the parties agree to use a published price or cost index or
published data as comparable as possible to the BLS Index during the time of' this
publication and prior to the change in such method.
Section 2.2. I-folding 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 60 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. If Tenant does not receive all
municipal, governmental or other approvals and consents necessary for the Lease within 60
calendar days after the Lease Date, this Lease shall terminate and neither party shall have
any rights or obligations hereunder.
Section 2.4. Entry Prior To Term
Prior to the Commencement Date, Tenant may enter the Premises in order to
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.
Article 3. RENT AND CAM
Section 3.1. Rent
Upon the Commencement Date, Tenant agrees to pay to Landlord annual rental
$132,000.00 (being $20.71 per square foot), payable in equal monthly installments of
$11,000.00 during the Term (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
Except as set forth in this Section 3.2, Tenant shall have no obligation to pay any
additional amounts to Landlord or any other party under or related to this Lease. As of the
Commencement Date and throughout the Term, Tenant shall be responsible for its
proportionate share of common area maintenance charges or similar charges applicable to the
Premises in accordance with invoices provided to Landlord for floors 1 and 2 of the Building
by the Carmel Arts Building Owners Association (the "CAM Charges"). An example of the
invoice for CAM charges is attached hereto as Exhibit B. Tenant's proportionate share of the
CAM Charges is 58%. Tenant shall pay Tenant's proportionate share of CAM Charges to
the Carmel Arts Building Owners Association, with a copy to Landlord.
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. Landlord,
at its cost, shall pay all taxes on Landlord'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 anv
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 2014 and payable in
2015 and continuing until the end of the Tenn or earlier termination of this Lease. If the real
estate tax exemption is not granted solely because Tenant did not timely file and/or proceed
with the required applications for such real estate tax exemption, Tenant shall pay its
proportionate share of real estate taxes applicable to the Premises during the Term.
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, including without limitation water, sewer, gas and electric,
supplied to the Premises and used by Tenant during the Term. All utilities shall be separately
metered to the Premises.
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Article 6. REPAIRS
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) 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"); (iii) all restrooms and other common areas of the first and
second floors of the Building including, without limitation, stairwells, elevators, restroom
and lobbies (the "Common Areas"); 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; (ii) Tenant's
exterior and interior signage; and (iii) Tenant's payment drop box. Tenant, agrees to: (a)
keep current an annual maintenance contract on the 1-IVAC system within the Premises; and
(b) assure repair of all non-functioning components within the HVAC system within the
Premises; all as approved by Landlord. Notwithstanding any provision in this Lease to the
contrary, Tenant shall not be responsible for any capital improvements or replacements to
the Premises, the Common Areas or the IiVAC system within the Premises.
Article 7. ALTERATIONS
Section 7.1. Improvements
Landlord shall deliver the Premises to Tenant in its "AS-IS" condition. Tenant, at its
cost, 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, and shall be in compliance
with all applicable federal, state and municipal statutes, ordinances, regulations and laws
(collectively the "Applicable Laws"). The Tenant Improvements described on Exhibit C are
approved by Landlord. At Tenant's option, the Tenant Improvements may remain in the
Premises upon expiration or termination of this Lease or may be removed by Tenant in
whole or in part. Tenant shall repair any damage caused by the removal of the Tenant
Improvements.
Section 7.2. Communication Equipment and Payment Drop Box
Tenant, with the approval of' Landlord, which approval shall not be withheld
unreasonably, may install a satellite dish antenna, other communication equipment and a
payment drop box 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 remove the payment drop box and repair any
damage caused by the installation or removal of any of Tenant's equipment.
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ARTICLE 8. USE OF PREMISE AND EXCLUSIVITY
Section 8.1. Permitted Use
The Premises may be used and occupied for general office use, including, without
limitation, the sales, service, products, management, administrative, billing and other uses
incidental or related, directly or indirectly, thereto, for Tenant, Carmel Utilities, CRC, and/or
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.
Section 8.2 Assignment or 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, sublease or allow use of the Premises or any portion thereof to: another
agency or instrumentality of the City of Carmel, including but not limited to CRC, without
approval of' Landlord. In the event of an assignment or sublease by Tenant, Tenant shall
remain liable to Landlord for the full amount of Rent. Landlord hereby agrees to approve or
disapprove, which approval shall not be withheld unreasonably', any proposed sublease or
sub-sublease of the Premises.
Section 8.3. Tenant's Compliance With Laws
Tenant shall use and occupy the Premises so as to comply with all Applicable Laws.
Section 8.4. Landlord's Compliance With Laws
Landlord's ownership and control of the Premises shall be in compliance with all
Applicable Laws.
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 $2,000,000.00; (b) any legally required workers' compensation insurance covering all of
Tenant's employees working on the Premises; and, (c) insurance insuring the Tenant's
personal property and trade fixtures from loss by reason of casualty. All such insurance set
forth in 9.1(a) above shall name Landlord as an additional insured.
Section 9.2. Landlord's insurance
Landlord shall maintain in hull force and effect during the Term: (a) commercial
general liability insurance against any and all claims and demands for damage to property or
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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 $2,000,000.00; and (b) a policy of
broad form lire and extended coverage insurance in an amount equal to the full replacement
cost of the Building, including the Premises, but excluding the Tenant's personal property
and trade fixtures. 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 13+ 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, 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 or any person acting by, for, or on behalf of Landlord, Tenant shall indemnity,
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.
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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; and (b)
signs, banners posters, and other promotional materials consistent with the operation of
Tenants business. 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 extent 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. 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.
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.
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,
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and such taking will, in Tenant's reasonable judgment, adversely affect Tenant's ability to
conduct its business; then Tenant, within 30 clays after receipt of notice of such taking or
conveyance_ may terminate this Lease by written notice to Landlord. 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 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;
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(b) terminate this Lease and recover from Tenant all damages incurred by
Landlord as a result of Tenant's default;
(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
Tenant of Landlord's notice of termination, whereupon Tenant shall he 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.
Notwithstanding the foregoing, Tenant shall not be liable for any consequential,
punitive or special damages; and nothing contained herein shall cause Tenant to incur any
liability in excess of that provided in the Indiana Tort Claims Act, Indiana Code §34.13-3-1
et seq.
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 (a "Level 1 Default"); 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. If a Level 1 Default is not
cured as when required in this Article 15, Tenant may terminate this Lease with 30 days
written notice to Landlord. It shall also be a default of this Lease (a "Level 2 Default") if,
during the original Term (i) Evan Lurie is not operating the Lurie Gallery; (ii) the Lurie
Gallery ceases to operate or remain open to the public; or (iii) the Lurie Gallery does not
remain substantially the same in terms of quality, offerings, size, operation and hours as
exists on the Effective Date. No cure period is required for a Level 2 Default. In the event of
a Level 2 Default, Tenant may terminate this Lease with 30 days written notice to Landlord.
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
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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.
Prior to the Commencement Date, Landlord shall obtain a "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. A non-disturbance agreement shall be required in connection with any
refinance or new loan obtained by Landlord.
Article 17. QUIET ENJOYMENT AND TENANT'S RIG[-IT TO TERMINATE
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. Notwithstanding any other provision in this Lease, in the event of a
change in use of the first floor which, in Tenant's discretion interferes with Tenant's use of
the Premises, Tenant may terminate this Lease with 30 days written notice to Landlord. In
the event, during the original Term (i) Evan Lurie does not operate the Lurie Gallery; or (ii)
the Lurie Gallery ceases to operate or remain open to the public; or (iii) the Lurie Gallery
does not remain in substantially the same in terms of quality, offerings, size, operation and
hours as exists on the Effective Date, such event shall be a Level 2 Default and Tenant may
proceed to terminate the Lease with 30 days written notice to Landlord as provided in Article
15.
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 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
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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. 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, ail 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. This indemnity includes,
without limitation, remedial, removal, response, abatement, cleanup, legal, investigative, and
monitoring costs, penalties, lines, 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, ail 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, 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. Ail
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.
11
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, return receipt requested, hand-delivery or
nationally recognized express mail carrier, 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
(prior to 760 Third Ave SW
Commencement Carmel, IN 46032
Date) Attn: Utilities Department Director
if to Tenant: The City of Carmel
(after the 30 West Main Street, Second Floor
Commencement Carmel, IN 46032
Date) Attn: Utilities Department Director
With a copy to: The City of Carmel
One Civic Square
Carmel, Indiana 46032
Attn: City Attorney
Notice or other communication shall be deemed given when received or refused by the
addressee.
Section 19.2. Force Majeure
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 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 fort, breach of contract, or otherwise, even if that party has been informed of the
12
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 ail
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.Warranties and Representations
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.
(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; and
13
(b) 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.
Section 19.1 L Parking
At all times throughout the Term, Landlord shall provide to Tenant free of charge the
exclusive use of six (6) contiguous parking spaces and one (1) non-contiguous parking space
(the "Parking Spaces") located on the real estate of which the Building is a part (the "Real
Estate"), which parking spaces are more particularly described in Exhibit D. 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.
Section 19.12. Compliance with Laws.
Landlord hereby represents that it shall comply with the existing laws of'the United
States, the State of Indiana and the City of Carmel and specifically agrees that it, (a) will not
discriminate against any employee, applicant for employment to be employed in the
performance of this Agreement, with respect to hire, tenure, terms, conditions, or privileges
of employment because of race, religion, color, age, sex, handicap, national origin or
ancestry, disabled veteran status or Vietnam era veteran status; (b) is enrolled in, and until it
no longer exists, uses, the F-Verify program of the Illegal Immigration Reform and
Immigration Responsibility Act of 1996, as amended, (the "E-verify Program") to verify the
work eligibility status of all Landlord's employees hired after June 30, 2011, and will
otherwise comply with Indiana Code 22-5-1.7 as to any subcontractor used by Landlord;
and (c) has not entered into a combination or an agreement relative to the price to be offered
by a person, to prevent a person from making an offer, to induce a person to refrain from a
making an offer and that Landlord's offer was made without reference to any other offer.
Pursuant to Indiana Code 5-22-16.5-13, Landlord certifies that it does not engage in
investment activities within the Country of Iran. Breach of these covenants shall be deemed
a material breach of this Lease and Tenant may terminate the Agreement with verbal notice
to Landlord.
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 or electronic 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 ail
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.
14
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 ail 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.
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.
h
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 20.7. 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 Lease is invalid or unenforceable, but that by limiting such provision if
would become valid or enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
[Signature page to follow.]
15
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
LANDLORD
E. LURIE, ,24.1111. _r
Bv: Air
Evan S. Lurie, Member
TENANT:
The City of Carmel, by and through its
Board of Public Works and Safety
ly
Jai. Brainard, Mayor
Date: ( /
Mary Al Burke, Member
Date: 7
\ 1:1#
Lori Watso : ember
Date: 7// 7 /e 3
Ina Cora ray, C'erk-Treasurer
Date: 7/7
Ri\Cityof Cannel\Lease with H.Lurie LLC\Leasev5
16
•
EXHIBIT A
Depiction and Description of
the Premises
(Second Floor)
A part of the Northeast Quarter of Section 25, Township 18 North, Range 3 East of the Second
Principal Meridian, Clay Township, Hamilton County, Indiana and also being part of Lot
Numbered One(1)and part of the north-south ten-foot-wide un-platted alley lying easterly of Lot
Number One (1), all in Simeon Hawkin's Addition to Bethlehem (now the City of Carmel) as
recorded in Deed Book 30,page 441 in the Office of the Recorder of Hamilton County,Indiana,
being further defined from elevation 842.56 (second floor) to 855.36 ( bottom of slab - third
floor) (NGVD 1929) and below,more particularly described as follows:
Commencing at the southeastern corner of said Lot Number One(1);thence North 89 degrees 08
minutes 43 seconds East(Basis of Bearings assuming the East Line of the Northeast Quarter of
said Section 25,Township 18 North,Range 3 East to be North 00 degrees 00 minutes 00 seconds
East) 1.08 feet along the northern right-of-way line of West Main Street to the southerly
extension of the upper levels of the eastern line of an existing four-story brick building; thence
North 00 degrees 09 minutes 23 seconds East 0.39 feet along said southerly extension to the
southeastern corner of the upper levels of said building to the POINT OF BEGLNNING of this
description (all of the following courses are along the face of said building); thence North 89
degrees 50 minutes 37 seconds West 14.67 feet; thence North 00 degrees 09 minutes 23 seconds
East 2.67 feet; thence North 89 degrees 50 minutes 37 seconds West 29.33 feet;thence South 00
degrees 09 minutes 23 seconds West 2.67 feet; thence North 89 degrees 50 minutes 37 seconds
West 14.67 feet; thence North 00 degrees 09 minutes 23 seconds East 126.83 feet;thence South
89 degrees 50 minutes 37 seconds East 58.67 feet; thence South 00 degrees 09 minutes 23
seconds West 126.83 feet to the POINT OF BEGINNING, containing 7,362.7 square feet(0.169
acres)more or Iess.
•
PAGE 1 OF 2
EXHIBIT A
Depiction and Description of
the Premises Ca
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PAGE 2 OF 2
EXHIBIT B
Example of Cam Charges
River Road Property Management Inc Invoice
Accounting Et Property Management Svcs --- ----
6131 E 122nd St ,
Carmel, IN 46033
04/01/2013 1161
(317)5648290 •
myrnatrump®indy.rr.com Due on receipt Y 04/01/2013
•
Evan Lurie Gallery
30 W Main Street
Suite 1000
Carmel, IN 46032
----' $1,549.72'-------
Please detach top portion and return malt gout payment.
•
03/01/2013 Balance Forward 53,099.44
03/20/2013 Payment received -3,099.44
New charges (see details below) • 1,549.72
Total Amount Due 51,549.72
• Monthly CAM Fee - April 1,408.84
• 10% Building Maintenance Reserve Fund 140.88
• PLEASE MAKE CHECK PAYABLE TO: Carmel Arts Building Owners'
Association & remit to address below.
•
•
Please remit payment to: Total Of New Charges S1,549.72
River Road Property Management Inc. --- --- -- _ --
6131 E 122nd Street Total Amount Duel $1,549.72
Carmel, IN 46033 --- -
PAGE 1 OF 3
EXHIBIT B
• Example of Cam Charges
CARMEL ARTS BULDING
• 8-Nov-11 2010 2012
OPERATING EXPENSES ACTUAL PROPOSED 1
FIXED EXPENSE
Property Insurance 6,491.00 6,491.00
UTILITIES
Electric 5,237.00 5,237.00
Water/Sewer 1,510.00 1,510.00
OPERATING AND MAINTENANCE
Answering Service 513.00 C .�" r s' 2
Cleaning Supplies & Service
Common Area, Restrooms, Elevators & Carpet Cleaning 5,723.00 5,884.27
Electrical Supplies & Service 438.00 438.00
Elevator Contractor/Permits 1,748.00 1,748.00
Management and Bookkeeping
9,000.00 2
Maintenance Supplies, General 955.00 -.: - ;400.00,42
Miscellaneous 87.00 87.00
Other Miscellaneous Repairs & Maintenance -
Maintenance, on-call, inspections, bulbs, HVAC and filters 3,643.00 ;.s3,000002
Pest Control, common areas 983.00 983.00
Security and Alarms inspections 1,587.00 1,587.00
Telephone Alarm and Emergency Service 2,285.00 2,285.00
Trash removal 1,112.00 1,112.00
Window Cleaning 890.00 890.00
INITIAL SET UP FEES
Accounting System Set Up 300.00 3
Meeting w/Stenz to transfer current accounting 200.00 3
SUBTOTAL OPERATING COSTS 42,202.00 36,752.27
ADMINISTRATIVE FEE- 10% 4,220.20 3,675.23
TOTAL OPERATING COSTS 46,422.20 40,427.50 4
BUDGET ASSUMPTIONS:
• 1 2012 Budget is based on 2010 Actuals provided by Stenz
25Indlcates Savings'.
3 One-time Expense
4 Savings of$5994.70
BUDGET NOTES:
An increase from 2010 to 2012 should be anticipated for consumables &services.
Vendor and service contracts will be renegotiated at renewal to help offset increases.
PAGE 2 OF 3
EXHIBIT B
Example of Cam Charges
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PAGE 3 OF 3
EXHIBIT C
Tenant Improvements
•
Scope of work:
Demolish existing wall partitions, ceilings, flooring, casework and electrical as per plans prepared by
Mawr Design, Inc. dated April 10. 2013 (the "Plans").
Construct new wall partitions, ceilings, flooring, electrical and casework as per Plans.
Install new all specified finished materials as per Plans.
Install and revise existing mechanical as per Plans.
Install and revise existing sprinkler system as per Plans.
PAGE 1 OF 1
EXHIBIT D
Parking Spaces
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PAGE 1 OF 1