HomeMy WebLinkAboutHoward Park Cafe Lease SBCC 062019
Page 1 of 24
LEASE AGREEMENT
BY AND BETWEEN
THE BOARD OF PARK COMMISSIONERS FOR THE CITY OF SOUTH BEND
AND
THE SOUTH BEND CHOCOLATE COMPANY
LEASE
This Lease (“LEASE”) is made effective as of June 17, 2019 (the “Effective Date”), by and between
the City of South Bend, Indiana, Venues Parks & Arts Department, acting by and through its governing
body the Board of Park Commissioners (the “OWNER” or “CITY”), and The South Bend Chocolate
Company, Inc., 330 W. Sample Street, South Bend, Indiana 46619, an Indiana Corporation (the
“TENANT”) (each a “PARTY,” and together, the “PARTIES”).
PARAGRAPH I
RECITALS
WHEREAS, the Board of Park Commissioners for the City of South Bend (“City”) is authorized
under I.C. 36-10-4 to administer, improve and lease park property for the City of South Bend; and
WHEREAS, the City, through its Board of Park Commissioners, is the owner of certain real
property and improvements located within the City of South Bend, Indiana and commonly known as the
Howard Park, which property is more specifically described at EXHIBIT A attached hereto and
incorporated herein (“Howard Park”); and
WHEREAS, the CITY continues to prioritize public parks as vital cultural and recreational
community assets and wish to continue to improve the amenities within these spaces; and
WHEREAS, the CITY is interested in forming business relationships, with sustainable business
models, that provide for a return on investment to the residents, helping to further enhance our public
parks; and
WHEREAS, the City has determined that it is in the best interest of City and the citizens of South
Bend to enter into this agreement with TENANT related to the operation and management of food and
beverage services at Howard Park through this Lease.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth in
this Agreement, the parties agree as follows:
Page 2 of 24
PARAGRAPH II
DEFINITIONS
OWNER: City of South Bend, Indiana, Venues Parks & Arts Department, acting by and through its Board
of Park Commissioners, 310 S. St. Louis Blvd. South Bend, IN 46617.
BPC: City of South Bend, Indiana Board of Parks Commissioners
TENANT: South Bend Chocolate Company (SBCC), an Indiana based Corporation, President Mark
Tarner, 3300 W. Sample Street, South Bend, IN 46619
COMMUNITY CENTER: The Howard Park Community Center, a mixed-used, public building, owned
and operated by the OWNER and located at the 600 Block of East Jefferson Boulevard in South Bend,
Indiana 46617. See Exhibit B.
CAFÉ: A city-owned 3,014 SQ FT indoor facility attached to the west end of the COMMUNITY
CENTER. See Exhibit B.
OUTDOOR COVERED PATIO: A city-owned, semi-private 2,000 SQ FT paved patio, gas heated and
under cover located to the south and west of the CAFÉ. See Exhibit B.
OUTDOOR PATIO: A city-owned, 5,550 SQ FT uncovered, paved patio located to the south and west of
the OUTDOOR COVERED PATIO. See Exhibit B.
COMMUNITY ROOMS: ~2,800 SQ FT mixed-use room (divisible by three) plus ~2,000 SQ FT pre-
event room. See Exhibit B.
CONCESSION STAND: ~300 SQ FT concession area located in the support facility, to the south east of
the COMMUNITY CENTER. See Exhibit B.
PRIVATE OFFICE: ~105 SQ FT lockable, private office located in the COMMUNITY CENTER. See
Exhibit B.
PREMISES: Collectively the CAFÉ, OUTDOOR COVERED PATIO, OUTDOOR PATIO,
CONCESSION STAND, PRIVATE OFFICE, and other spaces, such as the COMMUNITY ROOMS,
when used by the TENANT for catering or food service operations.
Page 3 of 24
PARAGRAPH III
PRE-OPENING COMMITMENTS
A. OWNER PROVISIONS:
Upon the execution of this Agreement, OWNER agrees to provide the following:
3.1 Architecture planning, engineering, and construction of CAFÉ building shell, including, but not
limited to, structural supports, exterior walls, roof, windows, and doors.
3.2 An amount not to exceed, One Hundred Fifty Thousand Dollars ($150,000.00), to be used
towards buildout of the CAFÉ space designed to reasonably cover architecture professional services,
HV/AC systems, electrical system, restroom buildout, and floors.
3.3 Architecture planning, engineering, and construction of PATIO, including, but not limited to,
structural pergola, pavers, bocce ball court, and planted landscaping beds.
3.4 Architecture planning, engineering, and construction of CONCESSION STAND, including, but
not limited to, structural supports, exterior walls, interior walls, mechanicals, doors, and windows.
3.5 The purchase of mutually agreed upon exterior patio furniture, games, and amenities, not to
exceed Forty-Five Thousand Dollars ($45,000.00).
3.6 Allowance for concession stand equipment and buildout, not to exceed Twelve Thousand Dollars
($12,000.00).
3.7 Exterior audio system and exterior gas heating system for COVERED PATIO and pergola areas.
3.8 OWNER’s contractor will be responsible for executing the scope of work defined in Paragraph 1.
OWNER will pay for this work directly in compliance with applicable municipal, state and federal laws,
regulations and rules.
B. TENANT PROVISIONS:
In cooperation with OWNER, TENANT agrees to provide, at its sole expense, on or before November 18,
2019:
3.9 Buildout of the CAFÉ, including but not limited to, interior walls, kitchen/bar equipment and
associated mechanicals, furniture, casework, fixtures, lighting, audio/visual equipment, décor, signage,
and all service wares.
3.10 Buildout of the CONCESSION STAND, including but not limited to, interior walls, food service
equipment and associated mechanicals, furniture, casework, fixtures, lighting, audio/visual equipment,
décor, signage, and all service wares.
3.11 All operating permits, including, but not limited to, 3-way liquor license and food service permits.
Page 4 of 24
3.12 A fully functional CAFÉ and CONCESSION STAND operation, complete with trained staff,
menu, inventory, and point of sale system.
3.13 Where appropriate TENANT will be obligated to utilize OWNER’S contractor as awarded in a
competitive bidding process and in compliance with applicable State of Indiana and City of South Bend
public works project laws and regulations. Generally, this work will be related to structural, walls,
mechanical, plumbing, and electrical systems. TENANT and OWNER will mutually approve costs and
scope before work is performed. TENANT will reimburse OWNER for scope of services performed by
OWNER’S contractor and defined in Paragraph III. TENANT will be responsible for self-performing or
directly contracting for interior work, generally defined as Furniture, Finishings, and Equipment.
3.14 At the time of signing this lease, TENANT projects to contribute up to Five Hundred Thousand
Dollars ($500,000) to the items conveyed in this Paragraph III subsection B.
PARAGRAPH IV
COMMITMENTS, USES, AND SERVICES
A. General Operations
4.1 Services: TENANT agrees to provide quality food and beverage operation, including but not limited
to, table-side, counter, catering, banquet and concessions sales and service in the PREMISES; on-site and
off-site commercial marketing; labor, supplies, equipment, and licensees required to operate and deliver
services (collectively hereinafter referred to as “SERVICES”).
4.2 Catering License: TENANT and OWNER agree that pursuant to this Agreement, and following
TENANT securing any required licenses, registrations and permits, TENANT becomes the exclusive
provider of food and beverage for COMMUNITY ROOMS events. TENANT shall provide menus and
dedicated sales staff to plan for menus, logistics, and service of COMMUNITY ROOM events – which
may include, but is not limited to, meetings, parties, banquets, or receptions. Exceptions to these
TENANT obligations include internal OWNER events and activities as well as specialty cakes (i.e.
wedding cakes or birthday cakes). For the purposes of this PARAGRAPH, the PRE-EVENT ROOM
shall function as a COMMUNITY ROOM as available.
4.3 Concessions License: TENANT and OWNER agree that pursuant to this Agreement, and following
TENANT securing all required licenses, registrations and permits, TENANT becomes exclusive operator
of the on-site CONCESSION STAND. TENANT will maintain consistent, seasonal, operating hours to
be mutually agreed upon by TENANT and OWNER. CONCESSION STAND will offer, at a minimum,
quick service, pre-packaged, and family-friendly food and beverage offerings. TENANT will provide for
menu and pricing signage as well as a point-of-sale system.
4.4 Additional Concessions: TENANT shall have the non-exclusive right to operate additional
concession or mobile stands throughout the park during SPECIAL EVENTS -, typically defined as one-
off events, planned and promoted by OWNER or outside organizations and may include festivals,
concerts, or other large community gatherings in Howard Park. TENANT, at its own expense, will be
Page 5 of 24
responsible for providing all required licenses, registrations and permits, as well as infrastructure
associated with SPECIAL EVENT services. TENANT may waive this right at any time.
4.5 Marketing: TENANT, at its sole expense, will provide marketing typical of a commercial food
service operation. TENANT will create and maintain a consistent online presence through a website and
engaging social media. TENANT will keep an advertised and reliable schedule of promotions and events.
TENANT agrees that any marketing materials which reference Howard Park, Venues Parks & Arts, or the
City of South Bend – in name, logo, or likeness – will adhere to the provided branding guidelines and be
subject to approval of OWNER. OWNER agrees to reasonably cross-promote TENANT’S operations
through its standard marketing channels.
4.6 Permits and Licenses: TENANT must, at its own cost and expense, procure and keep in force during
the term of this Agreement all registrations, permits and licenses required by applicable local, state and
federal laws and regulations necessary to enable TENANT to prepare, sell, and serve food and alcoholic
beverages.
4.7 Private Office: OWNER will provide TENANT a lockable 105 SQ FT PRIVATE OFFICE for the
purposes of TENANT accounting, managerial duties, and storage of TENANT’s staff personal items. It is
understood that the office will not be immediately adjacent to the CAFÉ. TENANT agrees to properly
secure any OWNER spaces utilized by TENANT and to make reasonable efforts to prevent theft,
vandalism, or other misuse in TENANT utilized OWNER spaces. TENANT’S only business for entering
OWNER spaces is to access PRIVATE OFFICE and access is not to be utilized for any other purpose.
TENANT is responsible and liable for security of PRIVATE OFFICE at all times.
4.8 Scheduling Community Rooms: OWNER has exclusive use of COMMUNITY ROOMS and PRE-
EVENT ROOM for scheduling OWNER and community partner programming as well as private events.
TENANT will refer all individuals or groups who wish to utilize the COMMUNITY ROOMS to the
OWNER for reservation. OWNER will book all events and exclusively refer food and beverage needs to
TENANT. In general, the PRE-EVENT ROOM is not available for private use during ice skating season,
normally November 1st through March 15th of each year. OWNER and TENANT shall maintain a
mutually agreed upon shared booking calendar to coordinate use of COMMUNITY ROOMS and PRE-
EVENT ROOM.
4.9 Management Contacts: TENANT agrees to employ an on-site, full-time general manager to oversee
PREMISES and SERVICES. TENANT agrees to assign this general manager or another person of
authority to be the primary point of contact for day-to-day logistical coordination with OWNER.
4.10 Uniforms: All employees of TENANT shall be neatly attired in uniforms which properly identify
the TENANT employee as a member of TENANT’S staff.
4.11 Food, Beverage, & Novelty Sales: TENANT and OWNER agree to discuss food, beverage, and
novelty selection, sales mix, quality, and pricing as appropriate. OWNER encourages TENANT to utilize
in-season, locally sourced, sustainable products sold at competitive market price points. TENANT will
have a menu mix that appeals to both families and adults. TENANT will consider utilizing preferred
OWNER vendors where possible. TENANT will make alcohol service available in accordance with all
Page 6 of 24
applicable local, state and federal laws and regulations.
4.12 Chewing Gum and Tobacco Sales Prohibited: Chewing gum and tobacco products are not permitted
to be sold or furnished by TENANT on PREMISES.
4.13 General Use: TENANT shall activate the PREMISES for purposes of a food and beverage operation
under such assumed name as TENANT determines appropriate, subject to OWNER’s advance written
approval, and for other associated ancillary purposes. TENANT will maintain consistent, advertised
operating hours to be mutually agreed upon by TENANT and OWNER. The PREMISES may not be used
for any other purpose without the prior written approval of the OWNER. TENANT shall not permit,
allow, or cause to be conducted on the PREMISES: (a) a public or private auction; or (b) a sale that would
indicate to the public that TENANT: (i) is bankrupt, (ii) is going out of business, or (iii) has lost or is
preparing to terminate its possessory of the PREMISES. The PREMISES shall be used in a manner
consistent with the general high standards of the community and neighborhood, and shall not be used in a
disreputable or immoral manner or in violation of federal, state or local laws or regulations.
B. OTHER OPERATIONS, UTILITIES, REPAIR, MAINTENANCE
4.14 OWNER Operations & Property Taxes: As collected through RENT and fees, OWNER shall be
responsible for payment of the following: Property Taxes, Natural Gas Utility, Electric Utility, Water and
Sewer Utility, Snow Removal, Exterior Landscaping, and bulk Site Trash & Recycling services.
4.15 OWNER Repair & Maintenance: OWNER shall, at its expense: (a) keep the foundation and roof of
the PREMISES in good order, repair and condition; and (b) maintain the exterior walls of the PREMISES
in a structurally sound condition, except to the extent that there is damage caused by any act or omission
of TENANT, its employees, agents, contractors, invitees or licensees; and (c) replace window and door
glass that may be damaged or broken with glass of the same or substantially similar quality, except to the
extent that the damage or breakage is caused by an act or omission of TENANT, its employees, agents,
contractors, invitees or licensees. OWNER shall be responsible for the replacement and maintenance of
all electrical, heating, ventilation, and cooling equipment and systems serving (collectively referred to as
the “Building Systems”); provided, however, that OWNER may bill TENANT for such replacement if
OWNER’s consultant determines with reasonable certainty that the need to replace the HVAC Systems
was as a result of TENANT’S misuse of it or TENANT’S failure to timely notify the OWNER of its
malfunctioning. Except as provided in this Paragraph 4.15, during the term of this Lease, OWNER shall
not be obligated to make repairs, replacements or improvements of any kind to or for the PREMISES, or
any trade fixtures or equipment contained therein, all of which such repairs, replacements or
improvements shall be the responsibility of TENANT.
4.16 TENANT REPAIRS & MAINTENANCE: Except for repairs & maintenance by OWNER pursuant
to Paragraph 4.15, TENANT shall: (a) keep the PREMISES clean, neat, and safe, and in good order,
repair and condition, including, without limitation, that TENANT shall make all maintenance, repairs,
alterations, additions, or replacements to the PREMISES and shall provide routine janitorial services at
TENANT’S expense; (b) keep all glass in windows, doors, fixtures, and other locations clean and in good
order, repair, and condition, and replace interior light bulbs or fluorescent lights as needed; (c) maintain
and repair all systems related to plumbing associated grease traps; and (d) paint and decorate the
Page 7 of 24
PREMISES as necessary or appropriate to comply with the terms and conditions of this Paragraph 4.16.
Notwithstanding any provision to the contrary, including Paragraph 6.1, the TENANT shall be
responsible for notifying the OWNER of any damage to, malfunctioning of, or apparent repairs needed
for the Building Systems for the PREMISES. Plumbing and electrical maintenance and repair expenses
which are directly attributable to the plumbing and electrical systems exclusively serving TENANT shall
be the responsibility of TENANT.
4.17 Security: OWNER will provide reasonable site security throughout Howard Park; however, it is
TENANT’S sole responsibility to provide security for CAFÉ and PRIVATE OFFICE. OWNER claims
no responsibility for security of these areas or is not responsible for any TENANT or third party claims of
any nature arising from these areas.
4.18 Sanitary Conditions: TENANT shall maintain all areas of the PREMISES in a clean and sanitary
condition, in accordance and consistent with all applicable rules, demands and requirements of law,
pertinent health and sanitary codes, and requirements of duly authorized health authorities of St. Joseph
County and any other health department having jurisdiction. All food service areas shall be subject to
inspection at all times by the OWNER.
4.19 Exterminators: TENANT shall, at its expense, engage the services of, and supervise the activities of
a licensed and insured pest control/ exterminator at least twice monthly to control, prevent and eliminate
the presence of vermin and pests. Such extermination services shall be supplied in all non-public areas
where food is prepared, dispensed or stored.
4.20 Waste and Waste Containers: TENANT will supply appropriate, adequate, trash receptacles in the
vicinity of all TENANT work and service areas (e.g., the kitchen, bar, concession stands, patio, etc.).
These areas shall be regularly monitored by TENANT for cleanliness and trash removal. All refuse and
waste materials created by TENANT’S operations in all public food, beverage, catering and concession
service areas shall be promptly disposed of. TENANT shall make full use of the kitchen garbage
disposals for organic waste to minimize the amounts of waste placed for removal in the outside refuse
compactor. TENANT shall exercise special care for the removal of grease including, the use of sealed
containers for the removal process. TENANT has sole financial responsibility for and is required to
contract with a tallow service for disposal of any waste oils. TENANT shall employ the necessary
personnel before, during and after operating hours, including special events, to comply with these
provisions. TENANT staff shall ensure that all waste receptacles are kept clean and properly serviced
during business hours. TENANT staff shall be responsible for the removal and placement of all kitchen
refuse into outside refuse compactors, provided by OWNER. It shall be the duty of TENANT to provide
continuous bussing of tables in all areas in which food is served to seated customers until all food and
trash has been removed. TENANT shall regularly empty waste containers in CAFÉ and PATIO areas
into outside refuse compactors and bins supplied by the OWNER.
4.21 Sidewalks: OWNER is responsible for maintaining sidewalks adjacent the PREMISES, however,
TENANT will assist with general cleanliness. TENANT acknowledges that the use of the sidewalks
adjoining the PREMISES is controlled by the South Bend Public Works Department. OWNER makes no
representation concerning the availability of such use for dining or other purposes. TENANT understands
that it must make application to the South Bend Board of Public Works for a permit to use the adjoining
Page 8 of 24
sidewalks.
4.22 Parking: OWNER is responsible for maintaining adjacent public parking areas. OWNER will not
be required to provide any parking spaces to the TENANT; and it is expressly understood by TENANT
that TENANT employees are not permitted to use on-street parking on either Jefferson Street or St. Louis
Boulevard. TENANT will make reasonable efforts to ensure that TENANT employees or contractors do
not utilize the most convenient customer and visitor parking areas. TENANT will ensure TENANT
employees respect private or restricted parking areas.
4.22 TENANT Alterations:
(a) Alterations: TENANT, at its sole cost and expense, may install within the food and
beverage service areas of the PREMISES such fixtures and equipment as TENANT
reasonably determines to be necessary and appropriate to conduct its business, subject to
compliance with all applicable local, state and federal laws and regulations. TENANT, at
its cost and expense, also may make non-structural alterations or improvements to the
interior of the PREMISES if: (i) TENANT delivers to OWNER written notice describing
the proposed alteration or improvement with particularity, and provides to OWNER
copies of any plans and specifications for the alteration or improvement; and (ii) upon the
termination of this Lease, TENANT surrenders the part of the PREMISES altered or
improved to OWNER in as good a condition as on the date of installation or construction
completion , normal wear and tear excepted. TENANT shall not, without the prior
written consent of OWNER, make any: (1) alterations, improvements, or additions to the
exterior of the PREMISES; or (2) except as described above, structural or other
alterations, improvements, or additions of or to any part of the interior of the PREMISES.
All alterations, improvements, or additions to the PREMISES, exclusive of moveable
equipment and furniture, shall become the sole property of OWNER upon termination of
this Lease.
(b) Exterior Signs. TENANT shall comply with all zoning requirements and other state and
local laws governing the installation and use of exterior signs, and window and door
graphics, and OWNER’S approval shall be required in advance of installation, such
approval shall not be unreasonably withheld.
(c) Permits. Before making any alterations, improvements, or additions, TENANT shall: (i)
obtain all required permits, licenses, bonds and approvals necessary for the
improvements, alterations, or additions; and (ii) deliver to OWNER: (A) copies of such
permits, licenses, bonds and approvals; and (B) provide evidence reasonably satisfactory
to OWNER that TENANT has procured workers’ compensation, builder’s risk,
commercial general liability, and property damage insurance in as OWNER reasonably
may require. TENANT shall at TENANT’S cost and expense: (1) complete the
construction of any alterations, improvements or additions in a good and workmanlike
manner and in compliance with all Laws and all permits, licenses and approvals; and (2)
assure that all contractors, subcontractors, laborers, and suppliers performing work or
supplying materials are paid in full.
Page 9 of 24
(d) Liens. TENANT shall not suffer or cause the filing of any mechanic’s or other lien against
the PREMISES or the Building. TENANT shall further not enter into any contract or
agreement that provides explicitly or implicitly that a lien may be attached against the
PREMISES, or any improvements If any mechanic’s or other lien is filed against the
PREMISES, or any part thereof for work claimed to have been done for TENANT, or
materials claimed to have been furnished to TENANT, then TENANT shall: (i) cause such
lien to be discharged of record within twenty (20) days after notice of the filing by bonding
or as provided or required by law; or (ii) provide evidence satisfactory to OWNER that the
lien is being contested by proceedings adequate to prevent foreclosure of the lien, together
with indemnity satisfactory to OWNER (in an amount equal to at least one hundred fifty
percent (150%) of the claimed lien) to OWNER within thirty (30) days after notice of the
filing thereof. All liens suffered or caused by TENANT shall attach to TENANT’S interest
only. Nothing in this Lease shall be deemed or construed to: (1) constitute consent to, or
request of, any Party for the performance of any work for, or the furnishing of any materials
to TENANT; or (2) give TENANT the right or authority to contract for, authorize, or permit
the performance of any work or the furnishing of any materials that would permit the
attaching of a mechanic’s lien to the PREMISES or improvements or OWNER’s interest
therein.
4.23 Rights Reserved to OWNER: OWNER shall have the following rights, exercisable upon reasonable
prior notice to TENANT, but without liability to TENANT for damage or injury to property, person, or
business, all claims or damages being hereby released, and without effecting a constructive eviction or
disturbance of TENANT’S use or occupation of Premises or giving rise to any claim for offsets or
abatement of rent:
(a) To change the name or street address of the PREMISES, including any building or structure
included as forming part of the PREMISES;
(b) To install and maintain signs on the exterior and interior of the Building which signs will not
affect the access to or visibility of the PREMISES or TENANT’S signs;
(c) To designate and/or approve, prior to installation, all types of window coverings, awnings,
covered entrances and signs and lettering (in accordance with Paragraph 7.6) on windows and
building exteriors and elsewhere visible from the sidewalk around the PREMISES, and to control
all internal lighting that may be visible from outside the PREMISES;
(d) To have pass keys to the PREMISES, and all portions thereof;
(e) To grant to anyone, including the OWNER itself, the right to conduct any business or render any
service in the PREMISES and throughout Howard Park provided such right shall not operate to
exclude TENANT from the use expressly permitted in this Lease;
(f) To decorate, remodel, repair, alter or otherwise prepare the PREMISES for re-occupancy during
the last three (3) months of the Term, but only if during or prior to such time TENANT vacates
the PREMISES, or (ii) at any time after TENANT abandons the PREMISES;
Page 10 of 24
(g) To enter the PREMISES to make inspections, repairs, alterations, or additions in or to the
PREMISES, or during the final three (3) months of the Term to show the PREMISES to
prospective TENANTs, purchasers, or others, at reasonable hours, and at any time in the event of
an emergency, and to perform any acts related to the safety protection, preservation, re-letting,
sale or improvement of the PREMISES;
(h) To require all persons entering or leaving the PREMISES during such hours as OWNER may
from time-to-time reasonably determine to identify themselves to a guard by registration or
otherwise and to establish their right to enter and to exclude or expel any peddler, solicitor, or
unruly or loud person at any time from the PREMISES;
(i) To close the PREMISES during times of emergency and, subject to TENANT’S right to
admittance under such rules as shall be prescribed from time-to-time by OWNER, after scheduled
business hours;
(j) To approve the weight, size and location of safes and other heavy equipment and TENANT
property in and about the PREMISES and to require all such items to be moved in and out of the
PREMISES only at such times and in such manner as OWNER shall direct and in all events at
TENANT’S sole risk and responsibility;
(k) With prior written notice to TENANT, and without the interruption of TENANT’S business, to
decorate, alter, repair or improve the PREMISES at any time; and OWNER and its representative
for that purpose may enter on and about the Building with such materials as OWNER may deem
necessary, may erect scaffolding and all other necessary structures on or about the PREMISES and
may close or temporarily suspend operations of entrances, doors, corridors, elevators and other
facilities. TENANT waives any claim for damages including the loss of business resulting from
such action by OWNER. However, in the exercise of its rights under this subparagraph, OWNER
shall not unreasonably interfere with the conduct of TENANT’S business operations and shall
provide access to the PREMISES for TENANT’S customers and staff during scheduled business
hours; and
(l) To do or permit to be done any work in or about the PREMISES or any adjacent or nearby building,
land, street or alley.
PARAGRAPH V
TERM
5.1 Dates: The initial term of this LEASE shall be for ten (10) years, with the option for the Parties to
negotiate one consecutive 10-year renewal. This LEASE shall be effective as the date listed above. The
Rent commencement date for the initial ten (10) year term shall begin on January 1, 2020 and expire on
December 31, 2029.
5.2 Rates: TENANT agrees to pay OWNER a fixed monthly amount according to EXHIBIT C - Howard
Park TENANT Rent, O&M, & License Fee Schedule.
Page 11 of 24
• The First Rental Amount, Second Rental Amount, and Third Rental Amount, as those terms are
defined below and further explained in EXHIBIT C, shall collectively be referred to herein as
“Rent.” Rent shall be paid to OWNER as set forth below, in lawful United States currency
without notice, demand, deduction, set-off, counterclaim or recoupment, and without relief from
valuation or appraisement laws, in monthly installments, commencing on the January 1, 2020
date and during the entire Term and Extended Term (should the parties exercise the Renewal
Option), on or before the first (1st) day of each calendar month, in advance.
• Commencing on the first Rent due date (January 1, 2020) and continuing through December 31,
2022, TENANT shall pay the First Rental Amount, consisting of base rent in the amount of Two
Thousand Nine Hundred Fifteen Dollars and Seventy Five Cents ($2,915.75) (“Base Rent”), plus
Operating Maintenance and Licensing Fees totaling Two Thousand Five Hundred Dollars
($2,500.00) (“OM&L Fees”) for a total Rent of Five Thousand Four Hundred Fifteen Dollars and
Seventy Five Cents ($5,415.75) per month.
• Commencing on January 1, 2023 and continuing through December 31, 2025, TENANT shall pay
the Second Rental Amount, consisting of base rent in the amount of Three Thousand Four
Hundred Forty Dollars and Fifty Nine One Cents ($3,440.59) (“Base Rent”), plus Operating
Maintenance and Licensing Fees totaling Two Thousand Five Hundred Eighty Seven Dollars and
Fifty Cents ($2,587.50) (“OM&L Fees”) for a total Rent of Six Thousand Twenty Eight Dollars
and Nine Cents ($6,028.09) per month.
• Commencing on January 1, 2024 and continuing through December 31, 2029, TENANT shall pay
the Third Rental Amount, consisting of base rent in the amount of Four Thousand Fifty Nine
Dollars and Eighty Nine Cents ($4,059.89) (“Base Rent”), plus Operating Maintenance and
Licensing Fees totaling Two Thousand Six Hundred Seventy Nine Dollars and Thirty Eight
($2,679.38) (“OM&L Fees”) for a total Rent of Six Thousand Seven Hundred Thirty Nine
Dollars and Twenty Seven Cents ($6,739.27) per month.
• TENANT recognizes that the RENT rates in 5.2 are reflective of the TENANT’s initial leasehold
improvements. Any renewal or future terms will involve a renegotiation of RENT rates that are
consider market rates as well as any additional TENANT leasehold investments.
5.3 Overdue Payments: Any amount of Rent that is overdue shall bear interest at the lesser of: (a) the
maximum rate payable by TENANT under State law; or (b) the rate of eighteen percent (18%) per annum
from the date when such amount is due and payable under this Lease until the date paid.
5.4 Taxes & Fees: TENANT shall pay (as an Operating Expense) all federal, state and local license and
permit fees, and shall collect, withhold, remit, and/or pay (as an Operating Expense) for all sales, use and
excise taxes and compensation taxes relating to the provision of the Services. Pursuant to Paragraph 4.14,
OWNER will pay property taxes on behalf of TENANT, as collected through O&M Fees.
PARAGRAPH VI
INSURANCE AND INDEMNIFICATION
6.1. TENANTs Liability Insurance: TENANT, at its expense, shall maintain at all times during the
Term of this Leases, commercial general liability insurance on the PREMISES covering TENANT as the
Page 12 of 24
named insured and identifying OWNER as an "additional insured" with terms satisfactory to OWNER
and with companies admitted to do business in the State, for limits of not less than $700,000.00 for
bodily injury, including death resulting therefrom, and personal injury for any one (1) occurrence,
$1,000,000.00 property damage insurance, or a combined single limit in the amount of $5,000,000.00. At
all times, TENANT shall maintain limits naming OWNER as an "additional insured" in an amount
sufficient to cover any possible liability OWNER may have pursuant the amounts set forth at Indiana
Code § 34-13-3-4, as the same may be amended, superseded or re-codified from time to time.
6.2 Dram Shop Coverage: In addition to the insurance required under this Paragraph, for any such
period of time as TENANT shall serve liquor or other alcoholic beverages in or from the PREMISES,
TENANT agrees to maintain minimum limits of coverage of at least $2,000,000 covering "liquor law"
liability (sometimes also known as "dram shop" insurance) which shall insure TENANT, as the named
insured, and OWNER, as the additional insured, and all those claiming by, through or under OWNER,
against any and all claims, demands or actions for personal or bodily injury to, or death of, one person or
multiple persons in one or more accidents, and for damage to property, as well as for damages due to loss
of means of support, loss of consortium, and the like so that at all times OWNER will be fully protected
against claims that may arise by reason of or in connection with the sale and dispensing of liquor and
alcoholic beverages in and from the PREMISES.
6.3 Hazardous Materials Coverage: Notwithstanding the above-mentioned commercial general liability
insurance policy limit for TENANT shall not bring, possess, use, store, treat, or dispose of in or upon the
PREMISES, any flammables, explosives, radioactive materials, hazardous wastes or materials, toxic
wastes or materials, or other similar substances, petroleum products or derivatives or any substance
(collectively "Hazardous Materials") subject to regulation by or under any federal, state and local laws
and ordinances relating to the protection of the environment or the keeping, use or disposition of
environmentally hazardous materials, substances, or wastes, presently in effect or hereafter adopted, all
amendments to any of them, and all rules and regulations issued pursuant to any of such laws or
ordinances (collectively "Environmental Laws").
If TENANT does or intends to bring, possess, use, store, treat or dispose of any Hazardous Materials in or
upon the PREMISES, TENANT shall purchase additional public liability insurance and supply OWNER
with certificates of insurance reflecting the additional insurance, with coverage of no less than Five
Million. Dollars ($5,000,000.00) and purchase environmental impairment liability insurance with
coverage of not less than Five Million Dollars ($5,000,000.00) with a deductible of not greater than Fifty
Thousand Dollars ($50,000.00) to ensure that anything contaminated with or by the Hazardous Material
be removed from the PREMISES, and that the PREMISES be restored to a clean, neat, attractive, healthy,
sanitary and non-contaminated condition. OWNER shall be named as an "additional insured" on any
such policies.
6.4 Coverage Verification: All policies of insurance required by this Paragraph to be maintained by
TENANT shall: (a) be in a form, and maintained with an insurer, reasonably satisfactory to OWNER; and
(b) provide that such policies shall not be subject to cancellation, termination, or lowering of coverage
amounts without written notice to OWNER at least thirty (30) days in advance. TENANT shall provide
Page 13 of 24
OWNER a Certificate of Insurance for each policy insurance required to be maintained by TENANT
pursuant to this Paragraph, duly executed by the insurance company or the general agency writing such
policies and effective not later than the Lease Commencement Date. TENANT shall also furnish
OWNER with Certificates of Insurance not less than (10) days prior to the expiration of any such policy
or policies. If TENANT shall fail to timely procure or renew any of the insurance required under this
Paragraph, OWNER may obtain replacement coverage and the cost of same shall be payable by TENANT
with the next installment of Rent thereafter becoming due and payable.
6.5 Indemnity:
(a) Definition of Loss. The term "Loss," as used throughout this Lease, shall mean any and all
claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions,
causes of action, and losses of any and every kind and nature (including, without limitation, sums
paid in settlement of claims and for attorney's fees and court costs).
(b) Definition of Indemnify. The term "Indemnify," as used throughout this Lease, shall mean that
TENANT shall indemnify OWNER, save it harmless and, at OWNER's option and with attorneys
approved in writing by OWNER, defend OWNER, its contractors, agents, employees, members,
managers, officers, and mortgagees, if any, from any Loss arising out of the situations listed in
subsections 6.6(c)(d)(e) and (f) of this Paragraph.
(c) Mutual General Indemnity. Except for loss, injury or damage caused solely by the willful
misconduct or gross negligence of OWNER, it’s employees, contractors, or agents, TENANT
assumes all risk of injury or damages to person or property within the lease Premises and
covenants to Indemnify and hold harmless OWNER, it’s employees, contractors or agents
against any claim, damages, injuries, accidents, liability, and expense, including reasonable
attorneys’ fee for injury to persons or property resulting from, in connection with, arising from or
occasioned wholly or in part by the use of the leased Premises by TENANT. Except for loss,
injury or damage caused by the negligent acts or willful misconduct of TENANT, its employees,
contractors, invitees, licensees, visitors or agents, OWNER covenants to Indemnify TENANT,
and save it harmless, from and against any and all claims, actions, damages, injuries, accidents,
liability and expense, including reasonable attorneys' fees, in connection with or arising from, or
occasioned wholly or in part by, any act or omission of OWNER, its agents, contractors or
employees occurring on or about the PREMISES.
(d) Except for loss, injury or damage caused solely by the willful misconduct or gross negligence of
OWNER, its employees, contractors, or agents, the OWNER shall not be liable for damage caused
by hidden defects or failure to keep said PREMISES in repair, and shall not be liable for any
damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, or sewerage,
or the bursting or leaking of plumbing or of any plumbing or heating fixtures or waste or soil pipe
existing in connection with the Building or PREMISES, nor for damage occasioned by water, nor
for any damages arising from negligence of co-TENANTs or other occupants of the Building, or
Page 14 of 24
the agents, employees or servants of any of them, or of any owners or occupants of adjacent or
contiguous property.
(e) The OWNER shall not be liable for any injury to the TENANT, its employees and agents or any
other person, occurring on said PREMISES, irrespective of whether said injury is caused by a
defect in said PREMISES or by reasons of said PREMISES becoming out of repair or arising
from any other cause whatsoever, and the OWNER shall not be liable for damage to
TENANT’S property or to the property of any other person which may be located in or upon said
PREMISES and the TENANT agrees to indemnify, defend, and save harmless the OWNER
from any and all claims arising out of injuries to persons or property occurring on said
PREMISES.
6.6 Release of Subrogation: Each Party hereto does hereby release and discharge the other Party from any
and all claims or demands for damages, loss expense, or injury to the leased PREMISES, or to the
furnishings, fixtures, equipment or inventory or other property of either party in, about or upon the
PREMISES, as the case may be, caused by or resulting from perils, events or happenings which are
covered by insurance covering such loss and further provided that such waiver shall be effective only to
the extent of insurance proceeds actually received.
PARAGRAPH VII
CASUALTY AND CONDEMNATION
7.1 Casualty:
(a) Insubstantial Damage. If the PREMISES are damaged by fire or any other casualty (the "Casualty
Damage"), and the estimated cost to repair such Casualty Damage is less than fifty percent (50%)
of the estimated cost to replace the PREMISES, then OWNER shall repair such Casualty Damage
so long as sufficient insurance proceeds recovered as a result of such Casualty Damage remain
after deducting the amount of any expenses incurred in collecting the insurance proceeds.
Notwithstanding anything to the contrary set forth herein, in no event shall OWNER be required
to repair or replace: (1) the improvements to the PREMISES made by TENANT; or (2) any trade
fixtures, equipment, or inventory of TENANT (or any other person or entity) located on, in, or
about the PREMISES.
(b) Substantial Damage. If: (i) there is Casualty Damage to the PREMISES, and the cost to repair
such Casualty Damage is equal to or greater than fifty percent (50%) of the estimated cost to
replace the PREMISES; or (ii) there is Casualty Damage to a Building of which the PREMISES
is a part, and the cost to repair such Casualty Damage is equal to or greater than twenty-five
percent (25%) of the cost to replace the Building; then OWNER may elect either to: (1) repair or
rebuild the PREMISES, or a Building which is part of the PREMISES; or (2) terminate this Lease
upon delivery of written notice to TENANT within ninety (90) days after the occurrence of the
Casualty Damage.
Page 15 of 24
7.2. Removal of Certain Property: All moveable equipment and furniture furnished by, or paid for at the
expense of TENANT, shall be removed by or on behalf of TENANT at or prior to the expiration or
termination of this Lease or of TENANT’S right of possession hereunder, but only if, and to the extent,
that the removal thereof will not damage to the PREMISES or necessitate repairs to the same. TENANT
shall repair and restore any damage to the PREMISES arising from such removal so as to return the
PREMISES to the condition existing prior to installation; or alternatively, at OWNER's discretion,
TENANT shall pay or cause to be paid to OWNER one hundred ten percent (110%) of the cost of
repairing or restoring, which costs shall be deemed due and payable as of the date on which surrender by
TENANT is required under this Lease.
7.3. Property Not Removed: Any personal property of TENANT which shall remain in or upon the
PREMISES after TENANT has surrendered possession of the PREMISES shall be deemed to have been
abandoned by TENANT, and at the option of OWNER, such property: (a) shall be retained by OWNER
as its property; (b) shall be disposed of by OWNER in such manner as OWNER shall determine, without
accountability to any person; or (c) shall be removed by TENANT within three (3) business days at
TENANT’S expense upon written request from OWNER; provided, however, that if TENANT fails to
remove such property within such timeframe, OWNER may remove such property at TENANT’S
expenses, charging TENANT one hundred ten percent (110%) of the costs incurred by OWNER to
remove said items, which funds shall be due immediately upon notification of TENANT of such charges.
OWNER shall not be responsible for any loss or damage occurring to any property owned by TENANT
remaining in the PREMISES after TENANT surrenders possession thereof.
7.4 Survival of Terms: The terms of this PARAGRAPH VII shall survive termination of this Lease.
PARAGRAPH VIII
DEFAULT
8.1 Events of Default: Each of the following events shall be deemed an "Event of Default" by TENANT
under this Lease:
(a) Nonpayment. TENANT’S failure to pay Rent or other charges that TENANT is obligated to pay
under this Lease when due or is not paid within ten (10) days following receipt of notice from
OWNER.
(b) Insurance Not Maintained. Any failure to maintain the insurance coverages required to be
maintained by TENANT under this Lease.
(c) Other Lease Violations. TENANT’S failure to perform or observe any other covenant, condition,
or agreement of this Lease, which failure is not cured by TENANT within thirty (30) days after
the giving of notice by OWNER specifying the nature of the default.
(d) Partial Abatement of Base Rent. Base Rent shall be abated proportionately (based upon the
proportion that the unusable space in the PREMISES due to the Casualty Damage bears to the
Page 16 of 24
total space of the PREMISES) for each day that the PREMISES or any part thereof is unusable by
TENANT by reason of any Casualty Damage.
(e) Repair of TENANT Improvements. If OWNER is required or elects to repair the PREMISES,
then TENANT shall repair or replace: (i) the alterations, improvements, and additions to the
PREMISES made by TENANT; and/or (ii) any equipment of TENANT located on, in, or about
the PREMISES.
(f) Notice. TENANT shall give OWNER prompt written notice of any Casualty Damage in or to the
PREMISES, or to the Common Areas of which TENANT has knowledge.
PARAGRAPH IX
SURRENDER
9.1. Surrender of Leased PREMISES: Except as herein otherwise expressly provided in this Paragraph
IX, TENANT shall surrender and deliver up the PREMISES, together with all property affixed to the
PREMISES, to OWNER at the expiration or other termination of this Lease or of TENANT’S right to
possession hereunder, without fraud or delay, in good order, condition and repair except for reasonable
wear and tear after the last necessary repair, replacement, or restoration is made by TENANT, free and
clear of all liens and encumbrances, and without any payment or allowance whatsoever by OWNER on
account of any improvements made by TENANT. Each of the following shall constitute an Event of
Default by TENANT:
(a) Falsification of Information. If TENANT or any agent of TENANT falsifies any report in any
material respect or misrepresents other information in any material respect required to be
furnished to OWNER pursuant to this Lease.
(b) Merger or Consolidation. If TENANT is merged or consolidated with any other entity, or there is
a transfer of a controlling interest in TENANT.
(c) TENANT’S Dissolution or Liquidation. The commencement of steps or proceedings toward the
dissolution, winding up, or other termination of the existence of TENANT or toward the
liquidation of its assets, which includes TENANT’S failure to maintain a business license or any
other required registration, license or permit, in accordance with federal, state or local law.
(d) Bankruptcy. The commencement of a case under any chapter of the United States Bankruptcy
Code by or against TENANT, or the filing of a voluntary or involuntary petition proposing the
adjudication of TENANT as bankrupt or insolvent, or the reorganization of TENANT, or an
arrangement by TENANT with its creditors, unless the petition is filed or case commenced by a
Party other than TENANT and is withdrawn or dismissed within thirty (30) days after the date of
its filing.
Page 17 of 24
(e) Assignment or Attachment. The making of an assignment by TENANT of TENANT’S
obligations hereunder for the benefit of its creditors, or if in any other manner TENANT’S
interest in this Lease passes to another by operation of law, including, without limitation, by
attachment, execution, or similar legal process, which is not discharged or vacated within thirty
(30) days, except as permitted under this Lease.
(f) Appointment of Receiver or Trustee. The appointment of a receiver or trustee for the business or
property of TENANT, unless such appointment shall be vacated within ten (10) days after its
entry.
(g) Inability to Pay. The admission in writing by TENANT of its inability to pay its debts when due.
(h) As Otherwise Provided. The occurrence of any other event described as a default elsewhere in the
Lease or any amendment thereto, regardless of whether such event is defined as an "Event of
Default."
9.2. Remedies: Upon the occurrence of an Event of Default, OWNER, without notice to TENANT in any
instance (except where expressly provided for below or by applicable law) may do any one or more of the
following:
(a) Satisfy TENANT Obligations. OWNER may perform, on behalf of and at the expense of
TENANT, any obligation of TENANT under this Lease which TENANT has failed to perform and
of which OWNER has given TENANT notice (entering upon the PREMISES for such purpose, if
necessary), the cost of which performance by OWNER, plus interest thereon at the lesser of (i) the
highest rate permitted by law, or (ii) eighteen percent (18%) per annum from the date of such
expenditure, and reasonable cost and expense incurred by OWNER, shall be payable by TENANT
to OWNER with the first Rent installment thereafter becoming due and payable. The
performance by OWNER of any TENANT obligation under this Paragraph shall not be construed
either as a waiver of the Event of Default or of any other right or remedy of OWNER with respect
to such Event of Default or as a waiver of any term or condition of this Lease. Notwithstanding the
provisions of this Paragraph and regardless of whether an Event of Default shall have occurred,
OWNER may exercise the remedy described in this Paragraph without any notice to TENANT if
OWNER, in its good faith judgment, believes that it or the PREMISES would be materially
injured by failure to take rapid action or if the unperformed obligation of TENANT constitutes an
emergency.
(a) Termination of Lease. OWNER may terminate this Lease, by written notice to TENANT, without
any right by TENANT to reinstate its right by payment of Rent due or other performance of the
terms and conditions hereof. Upon such termination, TENANT shall immediately surrender
possession of the PREMISES to OWNER, and OWNER shall, in addition to all other rights and
remedies that OWNER may have, immediately become entitled to receive from TENANT: (i) an
amount equal to the aggregate of all Rent which then remains due to OWNER but unpaid by
TENANT; (ii) reasonable costs and expenses incurred by OWNER in connection with a re-entry
Page 18 of 24
or taking of possession of the PREMISES; (iii) reasonable costs and expenses incurred by
OWNER in connection with making alterations and repairs for the purpose of re-letting the
PREMISES; and (iv) reasonable attorneys' fees.
(b) Termination of Possessory Rights. OWNER may terminate TENANT’S rights to possession of
the PREMISES without terminating this Lease or TENANT’S obligations hereunder and
TENANT shall continue to be obligated to pay all Rent which then remains due to OWNER but
unpaid by TENANT and TENANT shall continue to be obligated for future RENT as the same
comes due under this Lease.
(c) Acceleration of RENT. OWNER may, whether it terminates the Lease or TENANT’S possessory
rights to the PREMISES, accelerate and declare immediately due all of the RENT that otherwise
would have been due from the date of the Event of Default through the stated expiration date of
the Term or Extended Term, the option for which has been exercised.
(d) Rent Minus Fair Market Value. OWNER may declare immediately due and payable from
TENANT, in addition to any damages or other amounts becoming due from TENANT under any
other provision of this Lease, an amount equal to the difference between (i) the Rent reserved in
this Lease from the date of the Event of Default through the stated expiration date of the Term or
Extended Term, the option for which has been exercised, and (ii) the then-fair market value of the
PREMISES for the same period.
(e) Other Remedies. OWNER may pursue any legal or equitable remedy allowed by applicable law.
9.3 Failure to Surrender: If TENANT fails to surrender the PREMISES upon expiration of the Term or
earlier termination of the Lease pursuant to Paragraph 9.2(a), or termination of TENANT’S possession
rights, the provisions of Paragraph 3.3 shall apply, and OWNER may, without further notice and with or
without process of law, enter upon and re-enter the PREMISES and possess and repossess itself thereof,
by force, summary proceedings, ejectment or otherwise, and may dispossess TENANT and remove
TENANT and all other persons and property from the PREMISES and may have, hold and enjoy the
PREMISES and the right to receive all rental and other income of and from the same.
12.4 Reimbursement of OWNER's Costs in Exercising Remedies: OWNER may recover from
TENANT, and TENANT shall pay to OWNER upon demand, such reasonable and actual costs and
expenses as OWNER may incur in recovering possession of the PREMISES, placing the same in good
order and condition and repairing and altering the same for reletting and all other reasonable and actual
costs and expenses, commissions and charges incurred by OWNER in reletting and otherwise exercising
any remedy provided herein or as a result of any Event of Default by TENANT hereunder (including,
without limitation, reasonable attorneys' fees).
12.5 Remedies Are Cumulative: No right or remedy herein conferred upon or reserved to OWNER is
intended to be exclusive of any other right or remedy herein or by law provided, but each shall be
Page 19 of 24
cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law
or in equity or by statute.
PARAGRAPH X
ASSIGNMENT AND SUBLETTING
10.1 Assignment and Subletting: TENANT shall not assign, sublet, mortgage, encumber, or in any
manner transfer, in whole or in part, any interest in this Lease or the PREMISES, or otherwise allow the
possession of the PREMISES by any person or entity other than TENANT.
10.2 Assignment by OWNER: OWNER, at any time and from time to time, may assign its interest in this
Lease, and, if: (a) OWNER assigns its interest in this Lease; and (b) the assignee assumes all of the
obligations of OWNER under the terms and conditions of this Lease; then OWNER and its successors
and assigns (other than the assignee of this Lease) shall be released from any and all liability hereunder.
PARAGRAPH XI
ATTORNMENT, SUBORDINATION, AND ESTOPPEL CERTIFICATES
11.1 Attornment: In the event any proceedings are brought for the foreclosure of, or in the event of
conveyance by deed-in-lieu of foreclosure of, or in the event of exercise of the power of sale under any
mortgage made by OWNER covering the PREMISES, TENANT hereby attorns to the successor-in-
interest of OWNER and covenants and agrees to execute an instrument in writing reasonably satisfactory
to same whereby TENANT attorns to such successor- in-interest and recognizes such successor-in-
interest as OWNER hereunder.
11.2. Subordination:
(a) OWNER shall have the right at any time and from time-to-time to create security interests in the
form of a mortgage, bond, deed of trust or other similar lien or encumbrance (a “Mortgage") upon
or affecting OWNER's fee estate in the PREMISES, or any part thereof, and the rights of
TENANT under this Lease shall be subject and subordinate to any such Mortgage; provided,
however, that in the event of any foreclosure or sale under any such Mortgage or the delivery by
OWNER of any deed-in-lieu of foreclosure to the holder of any such Mortgage, then the holder of
any such Mortgage agrees not to disturb TENANT’S possession so long as TENANT is not in
default under the terms of this Lease beyond any notice and/or cure periods provided for under
this Lease and attorns to such holder or the foreclosure purchaser as OWNER under this Lease.
Said subordination shall be self-operative and no further instrument of subordination shall be
necessary unless required by any such Mortgage holder, in which event TENANT agrees to,
within ten (10) days after request by OWNER or the Mortgage holder, execute any agreement
reasonably required by such Mortgage holder to memorialize said subordination and to
memorialize the terms of any related agreements between TENANT and such Mortgage holder.
Page 20 of 24
Any holder of any such Mortgage is herein referred to as "OWNER's Mortgagee(s)."
Notwithstanding the foregoing, a OWNER's Mortgagee may at any time subordinate its
Mortgage to this Lease without TENANT’S consent by notice in writing to TENANT, and
thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective
dates of execution and delivery and, in that event, such OWNER's Mortgagee shall have the same
rights with respect to this Lease as though it had been executed prior to the execution and
delivery of any such Mortgage and had been assigned to such OWNER's Mortgagee.
(b) This Lease shall be subject to and subordinate to all easements, restrictions, liens,
encumbrances, rights-of-way, or other matters affecting the PREMISES of record.
11.3 Estoppel Ce1tificates: TENANT and OWNER agree to execute and deliver, within ten (10) days
after a request by the other Party, a statement, in writing, certifying to OWNER and/or any Party
designated by OWNER, or TENANT and/or any Party designated by TENANT, as the case may be,
that: (a) this Lease is in full force and effect; (b) the Commencement Date; (c) that Rent is paid currently
without any off-set or defense thereto, (d) the amount of Rent, if any, paid in advance; (e) that there are
no known uncured defaults by OWNER or TENANT, or stating those known and claimed, provided that,
in fact, such facts are accurate and ascertainable, and (t) any other information reasonably requested.
PARAGRAPH XII
MISCELLANEOUS
12.1 Quiet Enjoyment: OWNER warrants that it is the owner in fee simple of the PREMISES, and that it
has full right and authority to enter into this Lease, subject to all easements, restrictions, liens,
encumbrances, rights-of-way and other matters of record. OWNER agrees that if TENANT observes all
of the terms and conditions of, and performs all of its obligations under, this Lease, then, at all times
during the Term, subject to the terms and conditions of this Lease, TENANT shall have the peaceful and
quiet enjoyment of possession of the PREMISES, without any manner of hindrance from Parties claiming
under, by, or through OWNER.
12.2 Recordation: The Parties agree that this lease shall not be recorded, but upon the request of either
Party, a Memorandum of Lease shall be prepared by OWNER, and shall be promptly executed, delivered,
and recorded in the Office of the Recorder of St. Joseph County, and the costs of recordation shall be
charged to the Party requesting the Memorandum of Lease.
12.3 Notices: Any notice, demand, request or other instrument (any “Notice”) which may be or is
required to be given under this Lease shall be in writing and shall be deemed given and received: (a) on
the date of delivery when delivered in person (with receipt for delivery); (b) three (3) business days after
deposit with the U.S. Postal Service, when sent by United States certified or registered mail, return receipt
requested, postage prepaid; or (c) on the next business day following deposit of any such Notice with a
national overnight delivery carrier (with receipt evidencing such delivery) such as, but not limited to,
Federal Express or UPS. Any Notice to be delivered in person or by mail shall be addressed: (a) if to
OWNER, at the address set forth in the Paragraph II hereof, or at such other address as OWNER may
Page 21 of 24
designate by written notice; and (b) if to TENANT, at the address set forth in PARAGRAPH II hereof, or
at such other address as TENANT may designate by written notice.
12.4 Waiver: One or more waivers of any covenant or condition by OWNER shall not be construed as a
waiver of a subsequent breach of the same covenant or condition, and the consent or approval by
OWNER to or of any act by TENANT requiring OWNER’s consent or approval shall not be deemed to
render unnecessary OWNER’s consent or approval to or of any subsequent similar act by TENANT.
12.5 Entire Agreement; Amendment: This Lease and the exhibits attached hereto (which exhibits are
incorporated herein by reference) set forth all the covenants, promises, agreements, conditions and
understandings between OWNER and TENANT concerning the PREMISES, and there are no covenants,
promises, agreements, conditions or understandings, either oral or written, between OWNER and
TENANT other than as are herein set forth. No alteration, amendment, change or addition to this Lease
shall be binding upon OWNER or TENANT unless reduced to writing and signed by authorized
representatives of both OWNER and TENANT.
12.6 Dispute Resolution; Remedies Cumulative: Any litigation over the terms or performance of this
Lease shall be commenced in the courts of St. Joseph County, Indiana. In any legal proceeding
concerning this Lease, each Party irrevocably waives the right to trial by jury with respect to any and all
causes of action, counterclaims, and disputes. The rights and remedies of OWNER and TENANT
hereunder shall be cumulative, and no one of them shall be deemed or construed as exclusive of any other
right or remedy hereunder, at law, or in equity. The exercise of any one such right or remedy by OWNER
or TENANT shall not impair its standing to exercise any other such right or remedy.
12.7 Accord and Satisfaction: No payment by TENANT or receipt by OWNER of a lesser amount than
the Rent due hereunder shall be deemed to be other than on account of the Rent first due hereunder. No
endorsement or statement on any check or letter accompanying any check or payment of Rent shall be
deemed to be an accord and satisfaction, and OWNER may accept any such check or payment without
prejudice to the right of OWNER to recover the balance of such Rent or to pursue any other right or
remedy.
12.8 Relationship: Nothing contained herein shall be deemed or construed to create between the Parties
any relationship other than that of OWNER and TENANT.
12.9 Information: TENANT shall provide to OWNER, annually, accurate financial statements of
TENANT certified by the highest-ranking financial officer of TENANT. Upon request, OWNER may be
asked to deliver updates on operations to the BPC.
12.10 Construction: The laws of the State of Indiana shall govern the validity, performance, and
enforcement of this Lease. The invalidity or unenforceability of any term or condition of this Lease shall
not affect the other terms and conditions, and this Lease shall be construed in all respects as if such
invalid or unenforceable term or condition had not been contained herein. The Parties acknowledge that
this Lease was negotiated and prepared by the Parties and their respective legal counsel; therefore, if any
provision of this Lease requires judicial interpretation, the court interpreting or construing such provision
shall not construe it more strictly against either Party. The captions of this Lease are for convenience only
and do not in any way limit or alter the terms and conditions of this Lease. Whenever in this Lease a
singular word is used, it also shall include the plural wherever required by the context and vice versa. All
references in this Lease to periods of days shall be construed to refer to calendar days, not business days,
Page 22 of 24
unless business days are specified.
12.11 Force Majeure: Notwithstanding anything to the contrary set forth herein, if OWNER or TENANT
is delayed in, or prevented from observing or performing any of its obligations hereunder (other than the
payment of any amount of money due hereunder) as the result of: (a) an act or omission of the other Party;
or (b) any other cause that is not within the control of the delayed or prevented Party (including, without
limitation, inclement weather, the unavailability of materials, equipment, services or labor, and utility or
energy shortages or acts or omissions of public utility providers); then: (A) such observation or performance
shall be excused for the period of the delay; and (B) any deadlines for observation or performance shall be
extended for the same period.
12.12 Counterparts: This Lease may be executed in separate counterparts, each of which when so executed
shall be an original, and all of which together shall constitute but one and the same instrument.
12.13 Successors and Assigns: Except as otherwise expressly provided herein, this Lease, and all of the
terms and conditions hereof, shall inure to the benefit of, and be binding upon, the respective heirs,
executors, administrators, successors, and assigns of OWNER and TENANT. All indemnities set forth
herein shall survive the termination of this Lease.
12.14 Authority: Each person executing this Lease represents and warrants that: (a) he or she has been
authorized to execute and deliver this Lease by the entity for which he or she is signing; and (b) this Lease
is the valid and binding agreement of such entity, enforceable in accordance with its terms.
12.15 Equal Opportunity Obligation: TENANT agrees not to (1) discriminate against any employee or
applicant for employment, to be employed by TENANT with respect to his or her hire, tenure, terms,
conditions or privileges of employment or any matter directly or indirectly related to employment, because
of his or her race, age, color, religion, sex, handicap, orientation, national origin, or ancestry, or (2) violate
the City of South Bend Human Rights Ordinance.
12.16 Anti-Collusion Requirement: By executing this Lease, TENANT certifies that it has not, nor has any
member, employer, representative or agent of its firm, directly or indirectly, entered into or offered to enter
into any combination, collusion, or agreement to receive or pay, that it has not received nor paid any sum
of money or other consideration for the negotiation and execution of this Lease other than that which is set
out herein.
[Signature page follows.]
Page 23 of 24
THE SOUTH BEND CHOCOLATE COMPANY, INC.
DATE: ___________________________
By:
Mark Tarner, President
CITY OF SOUTH BEND, INDIANA
BOARD OF PARK COMMISSIONERS
DATE: _______________________________
Mark Neal, President
Consuella Hopkins, Vice-President
Aimee Buccellato, Member
Dan Farrell, Member
Attest this ____ day of __________________, 20___.
By: _______________________________
Eva Ennis, Clerk
Jefferson Boulevard
St. Louis BoulevardEXHIBIT A
HOWARD PARK
Cafe
Covered PatioPatio CommunityRoomsNo TENANT Parking On-StreetNo TENANT Parking On-StreetNo TENANT Parking On-StreetNo TENANT Parking On-Street
PrivateOffice
Event Lawn Ice Pond
Water Feature
Fire Pit
Fire Pit DumpstersEXHIBIT B
Pre-Event
Room
EXHIBIT C - Howard Park Tenant Rent, O&M, & License Fee Schedule
1-3
1st Rental Amount
(End 12.31.22)
4-6
2nd Rental
Amount
(End 12.31.25)
7-10
3rd Rental
Amount
(End 12.31.29)
11+
Lease Year
Unit
Interior Café Rent 3,014 $6.00 $7.08 $8.35
Covered Heated Patio Rent 1,515 $3.00 $3.54 $4.18
Outdoor Patio Rent 5,550 $2.00 $2.36 $2.78
Private Secured Office Space Rent 105 $12.00 $14.16 $16.71
Base Monthly Rent (x12)$2,915.75 $3,440.59 $4,059.89
Total SF Weighted Average Base Rent 10,184 $3.44 $4.05 $4.78
O&M*Fixed/Month $1,750.00 $1,837.50 $1,929.38
Concession Stand License Fixed/Month $250.00 $250.00 $250.00
Community Center License Fixed/Month $500.00 $500.00 $500.00
Total Monthly O&M, & License Fixed/Month $2,500.00 $2,587.50 $2,679.38
Total Monthly Rent, O&M, & License $5,415.75 $6,028.09 $6,739.27
Annual Rent, O&M, & License Fees $64,989.00 $72,337.02 $80,871.18
*CAM, Provided Utilities, Property Taxes, Provided R&M Renegotiated Terms