HomeMy WebLinkAbout6D(5) Lease Agreement - Oliver Plow PartnersCommunity & Economic Development
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1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021
To: Redevelopment Commission
From: Matthew Sikora, Economic Development Planner
Subject: Lease Agreement — Oliver Plow Partners, LP
Date: April 26, 2011
Attached for approval is the Lease Agreement between the South Bend Redevelopment
Commission and Oliver Plow Partners, L.P. for a proposed development in Oliver Industrial
Park. The "Contract for Purchase and Sale" of 4.64 acres of land in Oliver Industrial was
approved during the Redevelopment Commission meeting on April 12, 2011.
As part of its commitment, the Commission agreed to utilize up to $200,000 to complete
necessary site improvements. Redevelopment staff, in conjunction with the Department of
Engineering, have been working closely with the developer to identify these improvements
and associated costs and to outline the bidding process and construction timelines.
The purpose of the Lease Agreement is to allow improvements to the site to be made in a
way that satisfies the project's time constraints and allows for greater coordination and
implementation of the Commission's commitment. The Lease Agreement does not
significantly alter the terms of the Contract (or commitments made by each party therein)
that was approved on April 12, 2011.
Staff seeks approval of the Lease Agreement by the Commission.
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LEASE AGREEMENT
BETWEEN
SOUTH BEND REDEVELOPMENT COMMISSION
and
OLIVER PLOW PARTNERS, L.P.
LEASE AGREEMENT
The parties to this Lease Agreement ( "Lease "), entered into on April , 2011,
between South Bend Redevelopment Commission, ( "Commission ") and Oliver Plow Partners,
L.P. ( "Company "), hereby agree as follows:
1. PROPERTY. The Commission hereby leases to the Company and the Company
leases from the Commission, subject to all of the terms and conditions hereinafter set forth, the
real estate located in Oliver Industrial Park with the legal description as follows: See Exhibit
"A" (the "Property").
2. TERM. The term of the Lease of the Property shall be one (1) year commencing
May 1, 2011 and ending April 30, 2012, unless sooner terminated as provided herein.
3. USE. The Property shall be occupied and used by the Company to assist the
Commission in improving the Real Estate consistent with Indiana law and the Contract for
Purchase and Sale which is attached hereto and made a part hereof as Exhibit `B ".
4. BASIC RENT. Given the fact the Company will be making substantial
leasehold improvements, and ultimately purchasing the Real Estate, the rent payable to
Commission shall be a non - refundable rate of One Dollar ($1.00) per year.
5. SECURITY DEPOSIT. None.
6. SERVICES TO BE PROVIDED BY THE COMMISSION. The Commission
shall cooperate with the Company in making the improvements to the Property. Commission
and Company shall keep each other informed concerning any construction which will take place,
and the need for the Commission to have access to the Property.
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7. COMMISSION'S TITLE. The Commission's title is and always shall be
paramount to the title of the Company, except that Commission understands Company will be
obtaining a credit facility in order to finance its leasehold improvements. Therefore,
Commission shall subordinate this Lease to the interest of any lender of Company providing a
credit facility to Company for the purposes stated herein. Commission shall execute a
Subordination Agreement which is reasonably acceptable to counsel for Commission.
8. ASSIGNMENT AND SUBLETTING.
A. The Company may not assign or transfer all or any part of its rights and interests
under this Lease, and may not sublet or permit the use and occupancy of all or any part of the
Property, to or by a third party without the prior written consent of the Commission. However,
the Commission does hereby consent to any subletting or use of the Property to ABC Company,
B. The Commission may transfer and assign, in whole or in part, all of its rights and
obligations under this Lease and in the Property. After such transfer or assignment, the
Commission named in this Lease will have no further liability to the Company under this Lease
for the obligations assumed by the assignee or transferee.
9. SIGNS. Company shall pay for all signs related to the Company's use of the
Property. No sign, advertisement, or notice may be inscribed, painted, or affixed on any part of
the Property except after obtaining written consent of the Commission.
10. USE OF THE PROPERTY. Company shall occupy and use the Property
during the term for the purposes specified in Paragraph 3.
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11. REPAIRS. The Company shall take reasonable steps to keep the Property in
good order, condition, and repair at Company's expense during the term of this Lease. Company
shall insure the Property in an amount satisfactory to the Commission naming Commission as
additional insured.
12. NOTICES AND PAYMENTS. Any notices which the Commission is required
to give the Company shall be deemed sufficient if it follows the notice provisions in paragraph
11 of Exhibit "B ".
13. DEFAULT BY COMPANY. In the event of a default by the Company under
this Lease, the Commission will have the following remedies:
A. If any voluntary or involuntary petition or similar pleading under any section of
any bankruptcy law is filed by or against the Company or any voluntary or involuntary
proceedings in any court or tribunal is instituted to declare the Company insolvent or unable to
pay its debts and, in the case of an involuntary petition or proceeding, if it is not dismissed with
thirty (30) days from the date it is filed, then the Commission, at its election and without further
notice or demand and either with or without entry upon the Property, may forthwith cancel this
Lease.
B. If the Company either fails to pay any rent or other monies owed to the
Commission on the date it is due, or is otherwise in default of any of its obligations or duties
under this Lease, then the Commission may enter into and upon the Property, or any part
thereof, and repossess the same, with or without terminating this Lease and without prejudice to
any of its remedies for rent or breach of covenant and may, at its option, terminate this Lease by
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giving written notice of its election to do so or may, at its option, lease the Property, or any part
thereof, as the agent of the Company, or otherwise.
C. The Company shall pay upon demand all the Commission's costs, charges, and
expenses, including reasonable fees of attorneys, agents, and others retained by the Commission,
incurred in enforcing the Company's obligations hereunder or incurred by the Commission in
any litigation, negotiation, or transaction involving the Company in which the Commission
becomes involved or concerned without the Commission's fault.
14. LIABILITY INSURANCE.
A. Company shall, at all times, maintain Comprehensive General Liability insurance
covering all operations in which the Company is engaged with limits of $1,000,000.00 Each
Occurrence and an Aggregate limit of not less than $5,000,000,00. In addition, the Company
shall carry Automobile Liability insurance covering any vehicles owned by or operated by the
Company on the Commission's Property with limits of not less than $1,000,000.00 per accident.
The Company shall, at all times, carry Workers Compensation insurance covering the
Company's employees and any subcontractors engaged by the Company.
B. Such insurance policy or policies shall name Commission as an additional
insured and shall provide that they may not be cancelled on less than thirty (30) days prior
written notice to Commission. Company shall furnish Commission with certificates of
insurance evidencing such coverage. Should Company fail to carry such insurance and furnish
Commission with certificates of insurance after a request to do so, Commission shall have the
right to obtain such insurance and collect the premium thereof from Company as additional rent.
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15. WAIVER OF SUBROGATION.
Each party hereby waives all claims for recovery from the other party for any loss or
damage to any of its property insured under valid and collectible insurance policies to the extent
of any recovery collectible under such Insurance, subject to the limitation that this waiver shall
apply when permitted by the applicable policy of Insurance
16. INDEMNIFY AND HOLD HARMLESS.
Company agrees to indemnify Commission for, and hold Commission harmless from
and against all fines, suits, claims, demands, liabilities and actions (including reasonable costs
and expenses of defending against such claims) resulting or alleged to result from any breach,
violation or non - performance of any covenant or condition hereof, or from the use of occupancy
of the Leased Property, by Company or Company's agents, employees, licensees, or invitees, for
any damage to person or property resulting from any act or omission or negligence of any
co- Company, visitor or other occupant of the Leased Property except as Commission's own
negligence may contribute thereto.
17. LIENS. Except as otherwise provided herein in order to accommodate
Company's credit facility to make leasehold improvements, the Company may not do any act
which in any way encumbers the title of the Commission in and to the Property and the building,
nor shall the interest or estate of the Commission in said Property and building be in any way
subject to any claim by way of lien or encumbrance, whether by operation of law or by virtue of
any expenses or implied contract by the Company. The Company will not permit the Property
and the building to become subject to any mechanics', laborers', or materialmen's liens on
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account of labor or material furnished, or claimed to have been furnished, to the Company for or
on the Property and building. As its election, the Commission may (but is not required to)
remove or discharge such lien, or claim for lien (with the right, in its discretion, to settle or
compromise the same), and any amounts advanced by the Commission together with any
attorney's fees incurred by Commission in connection therewith for such purpose shall be
additional rent immediately due from the Company to the Commission, with interest at the rate
of eighteen (18 %) percent per annum from the date of payment thereof by the Commission until
paid by the Company.
18. HAZARDOUS MATERIALS. Company shall not cause or permit any
Hazardous Materials to be brought upon, kept or used in or about the Property by Company, its
agents, employees, contractors or invitees without the prior written consent of Commission,
which consent shall not be unreasonably withheld as long as Company demonstrates to
Commission's reasonable satisfaction that such Hazardous Material is necessary or useful to
Company's business and will be used, kept and stored in a manner that complies with all laws
regulating any such Hazardous Material so brought upon or used or kept in or about the Property
or Real Estate. If Company breaches the obligations stated in the preceding sentence, or if the
presence of Hazardous Material on the Property or Real Estate caused or permitted by Company
results in contamination of the Property or Real Estate or if contamination of the Property or
Real Estate by Hazardous Material otherwise occurs for which Company is legally responsible
to Commission for damage resulting therefrom, then Company shall indemnify, defend and hold
Commission harmless from any and all claims, judgments, damages, penalties, fines, costs,
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liabilities or losses (including, without limitation, diminution in value of the Property or Real
Estate, damages for the loss or restriction on use of rentable or usable space or of any amenity of
the Property or Real Estate, damages arising from any adverse impact on marketing of space in
the Building, and sums paid in settlement of claims, attorney's fees, consultants' fees and expert
fees) which arise during or after the lease term as a result of such contamination. This
indemnification of Commission by Company includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean up, remedial, removal or
restoration work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Material present in the soil or ground water on or under the
Real Estate. Without limiting the foregoing, if the presence of any Hazardous Material on the
Property or Real Estate caused or permitted by Company results in any contamination of the
Property or Real Estate, Company shall promptly take all actions, at its sole expense, as are
necessary to return the Property to the condition existing prior to the introduction of any such
Hazardous Material to the Property or Real Estate; provided that Commission's written approval
of such actions shall be first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse long term or short term
effect on the Property or Real Estate. The foregoing indemnity shall survive the expiration or
earlier termination of the Lease.
As used herein, the term "Hazardous Material" means any hazardous or toxic substance,
material or waste, including, but not limited to, those substances, materials and wastes defined
or specified in 42 U.S.0 Section 9601 et seq. and any similar state statute or local ordinance
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applicable to the Real Estate as well as any rules and regulations promulgated, administered or
enforced by any governmental agency or authority pursuant thereto including any subsequent
amendments thereof.
19. BROKERS. Company represents and warrants that it has not dealt with any
broker or agent in any negotiations for or the obtaining of this Lease, and Company agrees to
indemnify and hold Commission harmless from any and all costs or liability, including
attorneys' fees, for compensation claimed by any broker or agent claiming to have been engaged
by it in connection with this Lease.
20. MISCELLANEOUS.
A. The invalidity of any provision, clause, or phrase will not serve to render the
balance of this Lease ineffective or void.
B. This Lease shall be binding upon and inure to the benefit of the respective parties
hereto, their heirs, executors, administrators, devisees, successors, and assigns. Any reference to
the Company or Commission shall, for the purpose of determining liability for property damage,
personal injury, and the like, be deemed to include the Company, the Commission, his or her
respective agents, employees, servants, partners, independent contractors, licensees, invitees,
guests or visitors.
C. This Lease supersedes and cancels all prior negotiations and agreements
whatsoever, and this Lease shall be amended only upon the joint written agreement of the
parties. However, this Lease is subject to the terms and conditions of the Contract for Purchase
of Real Estate, which is attached hereto as Exhibit "B ". Upon the closing of that Contract, this
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Lease shall be terminated even if it is prior to the expiration of the term contained in paragraph
2.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
ATTEST:
Signature
Printed Name and Title
Printed:
Title:
ATTEST:
Signature
Printed Name and Title
Gibney\oliverPlow \lease
OLIVER PLOW PARTNERS, LP
Printed:
Title: General Partner
CITY OF SOUTH BEND, DEPARTMENT OF
REDEVELOPMENT, by and through the
South Bend Redevelopment Commission,
its governing body
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STATE OF INDIANA )
) SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of 2011, personally appeared
and , known to be the
and , respectively, of the South Bend Redevelopment Commission, the governing
body of the City of South Bend, Department of Redevelopment and acknowledged execution of
the foregoing Contract for Purchase and Sale on behalf of said Commission and Department.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Resident of the
My commission expires:
County, Indiana
11
Notary Public
STATE OF INDIANA )
) SS:
ST JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this
day of 2011, personally appeared , its
Authorized Representative of Oliver Plow Partners, LP and acknowledged execution of the
foregoing Contract for Purchase and Sale on behalf of said Company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal.
Resident of
My commission expires:
County, Indiana
12
Notary Public
EXHIBIT A
Legal Description
That part of the Southeast Quarter of Section 11, Township 37 North, Range 2 East, Portage
Township, City of South Bend, St. Joseph County, Indiana which is described as: Lot #2 of the
Plat of "Oliver Plow Works First Minor Subdivision" as recorded by Document No. 1105030 in
the Records of the St. Joseph County, Indiana recorder's Office. Containing 4.64 Acres more or
less. Subject to all legal highways, easements and restrictions of record.
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EXHIBIT B
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