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HomeMy WebLinkAboutApproving a lease between the Board of Public Works and the South Bend Civic Theatre Inc. for use of the premises at 701 Portage Ave, from January 1, 1978 through December 31, 197 8RESOLUTION NO. 611 -78 Passed by the Common Council of the City of South Bend, Indiana, ril 10 1978 Attest: 4,-,- ',�- Clerk Attest: President of Common Council. Presented by me to the Mayor of the City of South Bend, Indiana April 11 19 78 &— �"` �'� City Clerk Approved and signed by me ��[� / �. 19 %�. Mayor RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA APPROVING A LEASE BETWEEN THE BOARD OF PUBLIC WORKS AND THE SOUTH BEND CIVIC THEATRE, INC. FOR USE OF THE PREMISES AT 701 PORTAGE AVENUE, FROM JANUARY 1, 1978 THROUGH DECEMBER 31, 1978. WHEREAS, the Common Council of the City of South Bend has passed an ordinance stipulating that the lease of any city -owned real estate to a non - governmental agency entered into by the Board of Public works shall be submitted to the Common Council for approval, and WHEREAS, the Board of Public Works has entered into a lease with the South Bend Civic Theatre, Inc. for use of the premises located at 701 Portage Avenue, South Bend, Indiana (formerly Fire Station #k6), from January 1, 1978 through December 31, 1978, which lease agreement was approved by the Board of Public Works on March 27, 1978, a copy of which is attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA: SECTION 1. That the lease between the Board of Public Works and the South Bend Civic Theatre, Inc. for the premises located at 701 Portage Avenue, entered into on March 27, 1978, is hereby approved. SECTION II. This effect from and after approval by the Mayor. PRESENTED 4/�_ -/ G - 7 � NOT APPROVED ADOPTED y /p - g Resolution shall be in full force and its adoption by the Common Council and Member of the Common Council r371 I signed only to provide an 5 opportunity for public discussion and Council action on the issue. FILED IN CLERK'S OFFICE APR 51978 Irene Gammon Q'M sm BEND, iNU. C_ LEASE =" = This Lease entered into between the CIVIL CI`'i OP SOUTH BEND, INDIANA, a municipality acting by and through its Board of Public Works and the Mayor, hereafter referred to as "Lessor ", and SOUTH BEND CIVIC THEATER, INC., an Indiana non- profit corpora- tion, hereafter referred to as "Lessee ", for and in consideration of the - covenants and agreements hereinafter mentioned, whereby Lessor leases and demises to the Lessee the pre- mises in St. Joseph County, State of Indiana, known and described _ as follows: Lots 1, ?_ and 3 as shown in recorded plat of the St. Joseph County Agricultural ' Society's addition to the City of South Bend, also known as 701 Portage Avenue. To have and to hold the same unto the Lessee from January 1, ` 1978, to and including December 31, 1978, and the Lessee, in con- sideration of said demise, does covenant and agree with the Lessor as follows: 1. The Lessee hereby represents that he will use said premises for the following described purposes and for no other purposes what- soever: amate4ir -- theater activities. 2. To pay as rent for said leased premises the sum of $1.00 dollar, payable as follows: with the execution of this lease, the receipt of which is hereby acknowledged by Lessor, without notice or demand, each receipt to be delivered on the f1r:3t day of each installment period to the Lessor or at such other place as the Lessor may from time to time designate in writing. 3. That the Lessee has examined and knows the condition of saia premises and has received the same in good order represenaationsrasetoephe • as herein otherwise specified, condition of repair thereof have been made by the Lessor or his re- presentative, prior to or at the execution of this lease -that are not herein expressed or endorsed hereon; and that Lessee will keep keep the interior and exterior of said premises in good repair, the roof and walls, replacing all broken glass with glass of the same aiza and quality as that broken, and will keep said remisesiand i.; appurtenanooa , as well as all eaves,.downspoutings catch drains, stools, lfavatories, sidewalks, adjoining ulleyu and Fill other _ facilities and equipment in with andntheclean and healthy condition, according direction of the proper public officers, during the term of this lease, at his own expense; and upon the terminationoof this lease and any gray, will yield up said premisWearoexceptcd) nand will deliver Lti�: repair (loss by fire and ordinary keys to Lessor. y. That Lessor shall not t,e liable for damage caused by hidden es in be defects or failure to keep said premis repair, from plumbing, not gas, liable for any damage done or occasioned by or other pipes, or sewerage, or the bursting or leakin; water, steam, plumbing or heating fixtures or waste or soil of plumbing or of any p building or premises, nor for pipe existiizg in connection with said damage occasioned by water, snow or ice being upon sidewalks or coming through the roof, sky - light, trap door or otherwise, nor for any damages arising from negligence of co- tenants or other - occupants of the same building, or the agents, employees or ser- vants of any of them, or of any owners or occupants of adjacent. or contiguous property. 5. The Lessor shall not be liable for any injury to the - Lessee or any other person, occurring on or in front of said pre- + raises, irrespective of whether said injury is caused by a defect in said premises or by reason of said premises becoming out of repair or arising from any other cause whatsoever, and the Lessor shall not be liable for damage to Lessee's property or to the pro- perty of any other person which may be located in or upon said pre - mises and the Lessee agrees to indemnify and save harmless the Lessor from any and all claims arising out of injuries to persons or pro -. perty occurring on or about said premises. 6. That the Lessee will not allow said premises to be used for b} any purpose that will increase the rate of insurance thereon, nor to be occupied in whole or in part by any other person, and will not sublet the same or any part thereof, nor assign this lease or any part thereof without, in each case the written consent of the Lessor first had and obtained, and will .not o ot permit any transfer, by I of law, of any interest in said premises acquired through this lease, and will not permit said premises to be used for any unlawful purpose or purpose that will injure the reputation of the same or of the build- t' ing he which disturb the any tenants of such placardsbnostedgorr of the neighbor placed thereon; except by written consent of the Lessor.- 7.1 That no alterations, changes or additions in said leased premises shall be made without first submitting written nlans and specifications for the same to the Lessor and obtaining his written consent to make the same. In the event of any such remodeling, alte- rations or additions that Lessee shall make the same at his .own ex- pense and shall promptly pay for all materials and labor involved. in - making the same. Lessee shall not permit any liens or claims or demands of any nature to exist against the Lessor or the leased-pre- raises. In the event an lien, claim or demand or any action for en -.. forcing the same shall be filed or mad aatshishowneexpense andd premises, the Lessee shall.defend the same Lessee hereby agrees to indemnify and hold harmless ofthe eLessor from any and all liability or expense arising y virtue demand or lien or the defense of any action filed to enforce the same. Any such alterations, changes or additions shall, when made, become a . part of said leased premises and remain thereon as the property of the Lessor at the termination of said tlease esat the oestoreothehpre= Lessor. If the Lessor shall require mises to the original condition in which it was before this. lease is executed, then the Lessee shall lroftthe prosaid visionsJoftthis such leasedwit ,i1 tion at his own expense, and al reference to*such restoration contracts, liens, demands and expenses shall apply to said restoration as well as the original alterations. the premises for the purpo 8. To allow Lessor free access to : >e of examining or exhibiting the same and also to allow the Lessor to said premises, at any and all times, "For Sale" signs and place up o n within ninety (90) days of the termination of this lease "For Rent' signs. - 2 - 9. Lessee shall promptly pay and discharge all store license taxes and all general property taxes or special license fees that may be assessed or levied by any lawful authority arTain:;t the property of Lessee or any sub - tenants on, against, or by virtue of the business conducted in or on the demised premises during; the term of this lease. 10. Lessee shall promptly pay (in addition to the rents above specified) all water, sewerage, electric, power, gas and heating bills taxed, levied, or charged against the premises for and during the terra of this lease. 11. Lessee covenants that should he make default in his a7rt!e- ment to pay the rent above provided to be paid, or any part thereof, or in any of the other covenants and agreements herein contained, tie will at once deliver peaceable possession of said premises to the Lessor, and, failing to do so, it shall be lawful for the Lessor,'_ his heirs or assigns, to declare said term ended, and pursuant to process of law, to reenter said demised premises, or any part there- of, to expel, remove, and put out the Lessee, or any person or per :,oris occupying the same, and to repossess and use said premises as before this demise, without prejudice to any remedies which mirrht otherwi:,- be used for arrears of rent or prior breach of covenants. i 12. Lessee further covenants and agrees that Lessor shall have at all times the right to distrain for rent due, and shall have a valid first lien upon all property of Lessee, whether exempt by lair or not, as security -for the payment of the rent herein covenanted to be paid. M13. That after the service of notice, or the commencement -of a suit, or after final judgment for possession of said premises, Lessor._ may receive and collect any rent due and the payment of said rent shall not waive or affect said notice, said suit or said judgment. 14. Assignment of this lease by Lessee is prohibited unless made with the consent of Lessor. Such consent shall not be.unreasonably withheld. 15. If the Lessee shall make any assignment for the benefit of creditors or if a receiver is appointed for the Lessee or his assets or of the Lessee's interest under this lease, and if the appointment of such receiver is not vacated within five (5) days, or if a volun- tary or involuntary petition is filed by or against Lessee under the Bankruptcy Act, the Lessor may, upon giving the Lessee ten (10) days notice of such election, either terminate Lessee's right to the possession of the demised premises or terminate this lease an in the Ca3e of a violation by the Lessee of any of the terms, covenants.or conditions of this lease. 16. It is agreed by the parties hereto that in the event Lessee• is declared bankrupt or voluntarily offers to creditors terms of composition or in case a receiver is appointed to take charae'of and conduct the affairs of the Lessee, then Lessor shall have the rir*ht of immediate possession of said premises. 17. That in care said premises shall be so injured by fire, windstorm or other catastrophe as to be rendered untenantahle, anti shall not be repaired by the Lessor and rendered tenantable within be ninety (90) days thereafter, it shall e a noti�eaatwthe endhof suchv hereto to terminate the lease by writ ninety (90) days, in which case rent shall be pai(I at the arrreed rate above provided up to the time of such fire; but in case such injuries;. are repaired and the premises rendered tenantable within ninety (90)- - 3 - days, the right to terminate the lease for such cause -shall not exist; provided, that nothing herein contained :;hall relieve the Lessee from liability for rent or damage where such damage or destruction shall be caused by the carelessness, ner*,ligence or improper conduct of the Lessee, his agents or servants. 18. It is expressly agreed that no waiver nor apparent %4aivc -r, nor the failure of Lessor to require strict performance of, any con- dition, covenant or agreement shall estop the Lessor from enforc- ing such condition, covenant or agreement, nor any other condition, covenant or agreement shall at any time be implied. 19. At the termination of this lease, by lapse of time or otherwise, Lessee will yield up immediate possession to Lessor, and failing so to do, will pay as liquidated damages for each d ai such possession is withheld, a sum equal to one hundred (100) times the per diem rental; but the provisions of this clause shall not be held as a waiver by Lessor of any rights of re- entry as herein set forth; nor shall the receipt o.f said rent or any part thereof,.or any other act in apparent affirmance of tenancy, operate as a waiver of the right to forfeit this lease and the term hereby granted for_ the period still unexpired, for any breach of any of the cov-enant5 herein. 20. It is also agreed that the Lessee shall pay and dischar: ?e . all reasonable costs, attorney's fees and expenses that shall be: made and incurred by the Lessor in enforcing the covenants and aErree- ments of this lease, including the agreements to deliver possession -far any re -ason_ herein provided; and all the parties to this lease agree that the covenants and agreements herein contained shall be binding upon, apply and inure to their respective heirs, executors, . administrators, successors and assigns, and the terms "Lessor" and "Lessee" shall embrace all of the parties hereto irrespective of number or gender. 21. It is agreed that all payments herein provided to be rgade shall be made without relief from valuation or appraisement laws, and all payments required to be made which shall not be made at the time due shall bear interest at the rate of eight per cent per annum from date of delinquency. 22. Lessee shall obtain a general public liability policy of not less than Five Hundred Thousand Dollars ($500,000.00) in the name of the Lessee, and shall file with the Lessor a certificate certify- ing as to the existence of such coverage. Further, Lessee shall hold the Lessor harmless from any and all claims arising out of the use of the premises by the Lessee. This contractual assumption of liability shall be insured in the general liability policy. 23. Lessee shall maintain lawn and shrubbery in a well groomed condition. ' 24. The Lessor shall retain the right to occupy, for a reason- able adjustment of the lease the which the Lessee fails t o Occupy and ue described in paragraph one (1) hereto. 25. It is agreed that the Lessor may cancel this lease by y giving ninety (90) days notice to the tenant. 26. The parties Hereto mutually covenant that the empriorlea::i agreement taking effect onremiuesyin3St.9Jose h County, State of the same above described p p Indiana, is hereby declared null and void upon the signing of this instrument. , - 4 - SOUTH BEND CIVIC THEATER, INC. By : IV t l L: President LESSEE The undersigned, Secretary of the South Bend Civic Theater, Inc. acknowledges this day that William J. Gooley is known to be the President of the South Bend Civic Theater, Inc. and has the authority to execute and bind the South Bend Civic Theater, Inc. to the foregoing lease. ATTEST: This instrument has been prepared by Thomas J. Brunner, Jr., Attorney for the City of South Bend, Indiana. ATTEST: Patricia DeClercP lerl��of BOARD OF PUBLIC WORKS OF THE CITY OF SOUTH BEND, INDIANA BY Attorney fo trick m._,mcMyhon Tho s Brunner, J� r..�- Peter ullen LESSOR Bend, Indiana - 5 - F, STATE OF INDIANA ) SS: ST. JOSEPH COUNTY ) Before the undersigned, a Notary Public in and for said County and State, personally appeared Patrick M. McMahon, Thomas J. Brunner, Jr. and Peter H. Mullen, this 27th day of March 1978, known as the Board of Public Works, respectively, of the City of South Bend, and acknowledged execution of the foregoing lease. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal. Notary Public David A. Wells My Commission Expires: 0