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Memorandum
Monday, October 13, 2014
TO: Redevelopment Commission
FROM: Brock Zeeb, Director of Economic Resources
SUBJECT: Tapastrie Lease - 105 W. Colfax, South Bend IN.
On July 10th, staff updated the commission on the proposed RFP process to award a new restaurant
concept at 105 W. Colfax. Before the Commission today is a lease for Tapastrie LLC.A new small plate
and wine tasting restaurant concept. DCI assembled a small panel of downtown stakeholders to review
the proposals and rate them based on uniqueness, finances, management and experience. The
proposed Tapastrie lease is a 40 month lease with the first 4 months offered as a stabilization period.
The new tenant plans an extensive nonstructural remodel of the space to provide the look, feel and
atmosphere for the new concept. The proposed rent is 3,481.00 a month plus CAM expenses. The
lease is planned to begin on Nov.1 2014.Carol Meehan is here to discuss the new concept and answer
any questions. Staff is requesting Commission approval of the lease.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574-235-9021 I SOUTHBENDIN.GOV
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LEASE
THIS AGREEMENT, made and entered into this 16th day of October, 2014(the"Effective Date"), by and between THE SOUTH
BEND REDEVELOPMENT COMMISSION,for and on behalf of the City of South Bend,Department of Redevelopment,1400 S County-City
Building,227 W.Jefferson Blvd.,South Bend,Indiana 46601,hereinafter referred to as"Landlord",and Tapastrie LLC,an Indiana limited
liability company,with offices at 105 W.Colfax,South Bend,Indiana 46601 hereinafter referred to as"Tenant",and in consideration of
the parties' mutual undertakings,agree as follows:
ARTICLE I-LEASE OF THE PREMISES
SECTION 1.1. BUILDING. Landlord owns a parcel of real estate in St.Joseph County,Indiana,located at the northwest corner of
Michigan Street and Colfax Avenue in South Bend,Indiana,commonly known as the Palais Royale and Morris Civic Theater Complex and
referred to in this Lease as the"Building." The Building includes the Premises referred to in Section 1.2 below which address is 201 North
Michigan Street.
SECTION 1.2. THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,upon and subject to
the terms and provisions of this Lease,the space outlined on Exhibit A,which is 201 North Michigan Street containing approximately
3,500 square feet on the ground floor and 2,400 square feet in the basement which shall for purposes of this Lease be the number of
square feet contained within the Premises,which space will be referred to hereinafter as the"Premises". The Premises is located entirely
within the Building, and is included in the term "Building" in this lease. Exhibit A shows only the approximate shape of the Premises.
Minor variations in square footage and space leased may occur and the parties to this Lease agree that such minor variations are not
material or important.
ARTICLE II—IMPROVEMENTS
SECTION 2.1. INSTALLATIONS. Except as set forth below in this Section 2.1, Tenant shall be responsible for all costs and
expenses of all improvements to the Premises. The Tenant shall be responsible to contract for installation of all Tenant leasehold
improvements using licensed and bonded construction personnel approved in writing by Landlord in advance. Plans and Specifications
and the contractors for Tenant's leasehold improvements must be approved, in writing, by Landlord before construction begins,and
Landlord agrees to respond to Tenant's request for approval within seven (7)working days. If Landlord fails to respond in writing to
Tenant's request for approval within fifteen (15) days, then approval shall be deemed given. Construction may not begin on any of
Tenant's leasehold improvements until Landlord has approved the Plans and Specifications. The improvements set forth in Exhibit B are
approved by Landlord and Tenant. Tenant may enter the Premises rent-free but otherwise subject to all of the terms and conditions of
this Lease beginning on the Effective Date for the purposes of completing the tenant improvements permitted hereunder and completing
other tasks in preparation to open for business. During such period and at any other time prior to the commencement of the Term,
Landlord shall have no responsibility or liability for loss or damage to trade fixtures or equipment installed or left on the Premises.
If during construction of the tenant improvements listed on Exhibit B,the construction reveals any issues to the structural parts
of the Building,Landlord shall be responsible for costs incurred in connection with remedying such issues. For purposes of this Section 2.1
only,structural issues shall include any issues which arise in connection with the outer walls,foundation and interior support columns as
well as any mold or mildew damage found within the walls to be renovated in connection with the tenant improvements. In the event
that Tenant claims any issues relating to mold requiring Landlord's remediation under this Section 2.1,Tenant shall engage a licensed
inspector to test the portion of the Premises affected. If the resulting test shows that mold remediation is required,then Landlord shall
be responsible for overseeing the remediation at its costs and expense. Notwithstanding anything to the contrary contained herein,
Tenant shall be responsible for the cost of any repairs that are needed due to the fault or negligence of Tenant or its contractors,agents,
employees or invitees.
SECTION 2.2 OWNERSHIP OF IMPROVEMENTS. Except for moveable equipment and furniture, all alterations, additions,
improvements and fixtures, including without limitation floor covering, lighting fixtures, ducts, controls, diffusers, filters or other
equipment for distribution of heating or cooling,which are presently installed or which may be made or installed by either of the parties
hereto upon the Premises or adjacent areas of the Building,and which in any manner are attached to the floors,walls,ceilings or races,is
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a fixture which is the property of Landlord and shall remain upon and be surrendered with the Premises as a part thereof at the
termination of this Lease,without disturbance, molestation or injury. During the term of this Lease, the Tenant shall not remove or
damage the above described improvements and fixtures without the written consent of the Landlord.
ARTICLE III—TERM
SECTION 3.1. THE TERM. The term of this Lease is for a period of Forty (40) months, commencing on November 1, 2014,
hereinafter referred to as the"Term". The Term shall end at 11:59 p.m.,Eastern Standard Time,on March 31,2018,unless renewed as
provided herein. Tenant shall have an option to renew the Lease for an additional thirty-six(36) month term(the"Renewal Term").
SECTION 3.2. SHORT FORM LEASE. The parties agree that this Lease shall not be recorded,but upon the request of either party,
a Short Form Lease,prepared by Landlord,describing the Premises,the Building,the terms and the names and addresses of Tenant and
Landlord,shall be promptly executed,acknowledged and delivered. The Short Form Lease may be recorded.
ARTICLE IV—RENT
SECTION 4.1. COVENANT. Tenant agrees that it will pay,without relief from valuation or appraisement laws,a rental for the
Premises to the Landlord,at 221 N.Michigan Street,South Bend,Indiana 46601 Attn: Dennis Andres,or such other place as the Landlord
may from time to time specify in writing,all as hereinafter provided.
SECTION 4.2. RENT Tenant shall commence payment of Rent together with CAM(as defined herein)on the first day of the fifth
(5th)month of the Term. Landlord shall provide Tenant with free possession for the first four(4)months of the Term. Beginning on the
first day of the fifth(5th)month of the Term,and continuing to the end of the Term,Tenant agrees to pay to Landlord monthly Rent in the
amount of Three Thousand Four Hundred Eighty One and no/100 dollars($3,481.00),in advance. Rent shall be delinquent unless it is
received by Landlord at the address provided herein on the first day of each month. Rent for the Premises shall increase by 3%for each
twelve(12)month period("Renewal Year")of the Renewal Term.
SECTION 4.3.COMMON EXPENSE. Except as otherwise provided by Section 7.1 herein,in addition to Rent,Tenant shall pay to
Landlord its pro rata share of the common expenses of the Building which include real estate taxes and assessments for the common
areas,maintenance expenses(excepting and excluding,however,all expense of roofing and structural repairs,all heating,plumbing and
electrical maintenance and repair expenses which are not directly attributable to the installation and maintenance of heating,plumbing,
electrical and lighting fixtures in the Premises and the bathroom facilities utilized and exclusively serving Tenant,which heating,plumbing
and electrical fixture and bathroom facility maintenance costs shall be the responsibility of Tenant), management expense, trash
compactor/trash removal expense, and public utility expense for the common areas, snow and ice shoveling expense, painting of the
common areas and exterior of the building,awning maintenance and other exterior building maintenance which is not of a structural or
roof repair nature,sidewalk cleaning,which pro rata share is hereinafter referred to as"CAM". Commencing the fifth month of the Term,
and continuing for twelve(12)months,Tenant shall pay monthly CAM in the amount of Six Hundred Fifty and no/100 Dollars($650.00)
CAM shall be adjusted for each successive twelve(12)month period("Lease Year")within the Lease Term. Landlord shall notify Tenant,
30 days in advance,of the CAM which shall be payable by Tenant during the next Lease Year. In the event such notice is not given,Tenant
shall pay the same monthly CAM as the previous period until notified. CAM shall be calculated based upon the actual expenses for items
included in CAM for the preceding Lease Year,adjusted to reflect reasonably anticipated increases or decreases. On or before the first
day of third month of each successive Lease Year,Landlord shall provide Tenant with a statement showing in reasonable detail the actual
expenses of those items paid or incurred by Landlord during the preceding Lease Year,which statement shall include either a deficiency
amount owed by Tenant which shall be paid within thirty(30)days by Tenant to Landlord or a statement of overpayment of Tenant's
proportionate share of such expenses,which sum shall be credited against the rental due from Tenant to Landlord or refunded to Tenant
within thirty(30) days, at Tenant's election. Landlord's statement of CAM shall be conclusive subject to correction of mathematical
errors,adjustment upon resolution of any pending appeals relating to real property taxes and may be based on reasonable estimates of
those sums if actual amounts are not known. Establishment of CAM by Landlord shall be done on a Lease Year basis. Tenant shall pay the
monthly CAM due with Tenant's payments of Rent in monthly payments,in advance,on the first day of the month. In the event Tenant
exercises the renewal option as provided herein,the Tenant's CAM payment shall be calculated for each Renewal Year as herein above
determined.
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SECTION 4.4. PAST DUE RENT. If Tenant shall fail to pay,when the same is due and payable, any Rent or CAM,such unpaid
amounts shall bear interest if not paid in full within ten (10)days from the due date thereof at the rate of eighteen percent(18%)per
annum.
ARTICLE V-USE OF BUILDING
SECTION 5.1. USE.Tenant shall operate the Premises for purposes of a restaurant operation under such assumed name as
Tenant determines appropriate subject to Landlord's advance written approval, and other ancillary purposes associated therewith.
Tenant may,subject to approval and limitation by the South Bend Board of Public Works,be permitted to use an outdoor seating area.
The Premises may not be used for any other purpose without the prior written approval of the Landlord. Landlord further warrants that it
shall not change nor alter the common areas in any manner or adversely affect the use,operation or conduct of Tenant's business being
conducted in the Premises,or adversely affect the accessibility or visibility of the Premises.
SECTION 5.2. CARE OF BUILDING.
(a) Tenant shall not perform any acts or carry on any practices which may injure the Building or be a nuisance or menace to other
tenants in the Building, and shall keep the Premises free and clean from rubbish and trash at all times,shall provide routine
maintenance and janitorial services for the Premises and shall store all trash and garbage within the Premises at locations
designated by Landlord and at no other location,and shall arrange for regular pick-up of such trash and garbage. Tenant shall
not burn any trash or garbage of any kind within the Building or on public spaces adjoining the Building. Landlord will provide
facilities for pick-up of trash or garbage and Tenant shall be obligated to use the same and shall pay a proportionate share of the
cost.
(b) Except for structural changes outside the Premises which shall be Landlord's responsibility,Tenant shall comply with and obey all
applicable laws, regulations and orders of any governmental authority or agency and all reasonable directions of Landlord,
including such building rules and regulations as may be adopted from time to time by Landlord,as changed or modified from
time to time by Landlord on reasonable notice to Tenant,all of which shall be deemed part of this Lease. Tenant shall not do or
permit anything to be done in and about the Building or Premises which will obstruct or interfere with the rights of other tenants
or occupants of the Building or injure or annoy them or which will increase the rate of fire insurance on the Building. Landlord
shall not be responsible to Tenant for the failure of any other tenant or occupant of the Building to comply with any of the rules
and regulations adopted by Landlord,but shall take reasonable measures to assure such tenant's compliance. In the event any
portion of the Premises is determined to be in violation of any building code, health law or ordinance or other law, local
ordinance or rule during the term of this Lease,Tenant shall be solely responsible to bring the Premises into compliance with
such ordinance,rule or law at Tenant's expense. In the event Tenant is prevented from using the Premises until such violations
of code,ordinance or law are corrected,these circumstances shall not impair,terminate or have any other effect on this Lease
and Tenant's obligations to pay Rent or CAM, both of which Tenant shall continue to pay notwithstanding these events.
SECTION 5.3. HEAT PUMP MAINTENANCE. Tenant shall be responsible for maintaining in good repair and operation all heat
pumps located within the Premises. Tenant shall obtain a service contact for maintaining the heat pumps from a reputable firm or
company licensed to perform such work that is acceptable to Landlord. Landlord may not unduly withhold approval of such contract.
SECTION 5.4. RIGHTS RESERVED TO LANDLORD. Landlord shall have the following rights exercisable upon reasonable prior
notice,but without liability to Tenant for damage or injury to property,person or business(all claims or damage being hereby released),
and without effecting a constructive eviction or disturbance of Tenant's use or possession or giving rise to any claim for offsets or
abatement of rent:
(a) To change the name or street address of the Building;
(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 on windows and building exteriors and elsewhere visible from the sidewalk on the Building,and to control all internal
lighting that may be visible from outside the Building. Tenant shall comply with all city restrictions concerning sign specifications
for all exterior signs and window and door graphics and Landlord shall approve any and all signs and window and door graphics
in advance.
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(d) To have pass keys to the Building, Premises and all portions thereof;
(e) To grant to anyone the exclusive right to conduct any business or render any service in the Building if such exclusive right shall
not operate to exclude Tenant from the use expressly permitted by Section 5.1;
(f) To decorate,remodel,repair,alter or otherwise prepare the Building for re-occupancy during the last three(3)months of the
Term hereof, but only if during or prior to such time Tenant vacates the Building, or at any time after Tenant abandons the
Building;
(g) To enter the Building to make inspections, repairs, alterations, or additions in or to the Building,or during the final three(3)
months of the Term to exhibit the Building 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 Building;
(h) To require all persons entering or leaving the Building during such hours as Landlord may from time to time reasonably
determine to identify themselves to a watchman 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 Building;
(i) To close the Building during times of emergency and,subject to Tenant's right to admittance under such regulations as shall be
prescribed from time to time by Landlord,after regular business hours;
(j) To approve the weight, size and location of safes and other heavy equipment and articles in and about the Building and to
require all such items to be moved in and out of the Building only at such times and in such manner as Landlord 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
Building at any time, and Landlord and its representatives for that purpose may enter on and about the Building with such
materials as Landlord may deem necessary,may erect scaffolding and all other necessary structures on or about the Building 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 therefrom. In the exercise of its rights under this subparagraph,
Landlord shall not unreasonably interfere with the conduct of Tenant's business and shall provide access to the Premises for
Tenant's customers and staff during business hours;and
(I) To do or permit to be done any work in or about the Building or any adjacent or nearby building, land,street or alley.
ARTICLE VI-PUBLIC UTILITIES
SECTION 6.1. UTILITY SERVICES. Landlord shall provide the necessary mains,meters,and conduits for water and sewer facilities
and electric service to the Premises as well as water for operation of the heat pumps located in the Premises. Tenant shall promptly pay
all bills for any utility service to the Premises.
SECTION 6.2. MAINTENANCE OF MECHANICAL EQUIPMENT AND PLUMBING. As set forth more specifically in Section 4.3
herein,the expenses of maintaining the electrical and plumbing systems supply to the Premises which are not directly attributable to the
installation and maintenance of plumbing and light fixtures in the Premises,and the bathroom facilities utilized by the Tenant shall be the
responsibility of Landlord. Tenant is prohibited from performing any maintenance services to any of the aforesaid equipment itself or
from hiring any contractors or persons to repair the same. Landlord agrees to arrange for repair and maintenance to the plumbing and
electrical fixtures utilized by the Tenant in the Premises,and Landlord shall promptly send to Tenant an invoice for the expense of such
repair,which shall be paid by Tenant within ten(10)days after mailing or delivery of such statement of expense by Landlord to Tenant.
Landlord shall also maintain the mains,conduits and pumps necessary to supply water to the heat pumps located in the Premises and in
accordance with Section 5.3 herein. Tenant shall be responsible for maintaining said heat pumps in good,operable condition.
SECTION 6.3. LANDLORD'S RESERVED RIGHTS. With prior written notice to Tenant,Landlord reserves the right to suspend or
reduce the services of heating, elevators, plumbing, electrical, air conditioning or other mechanical systems in the Building when
necessary by reason of governmental regulations, civil commotion, or riot, accident or emergency or for repairs, alterations or
improvements which are in the reasonable judgment of Landlord desirable or necessary,or for any other reason beyond the power or
control of Landlord(including without limitation,the unavailability of fuel or energy or compliance by Landlord with any applicable laws,
rules or regulations relating thereto),without liability in damages therefor and without any reduction in rental payable by Tenant. The
exercise of such right by Landlord of such right by Landlord shall not constitute an actual or constructive eviction in whole or in part nor
entitle Tenant to any abatement or diminution of Rent or CAM nor relieve Tenant from any Tenant's obligations under the Lease nor
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impose any liability upon Landlord or its agents by reason of inconvenience or annoyance to Tenant or injury to or interruption of
Tenant's business or otherwise. Landlord shall not in any way be liable or responsible to Tenant for any loss,damage or expense which
Tenant may sustain or incur if,during the Lease Term and for reasons beyond the control of Landlord,either the quality or character of
electric current is changed or is no longer available or suitable for Tenant's requirements.
ARTICLE VII-MAINTENANCE AND REPAIRS
SECTION 7.1. MAINTENANCE OF BUILDING AND PREMISES. Landlord shall at its expense keep the foundation,outer walls and
other similar structural components, including the roof of the Building (excluding glass) in good repair. All Landlord work shall be
performed in a workmanlike manner in compliance with all laws,codes,and all regulations. If Landlord's work is not performed as herein
required, or if such work or the Building is not in compliance with all laws, codes or other regulations, Landlord shall perform the
necessary remedial work at its sole cost and expense.
Tenant shall maintain the Premises in a good, neat and clean condition. Landlord shall not be required to make any other
improvements or repairs to the Premises except as specifically provided in this Lease. Tenant shall provide routine janitorial services at
Tenant's expense and shall further replace all window glass,glass in entrance doors and store fronts and interior burned out light bulbs
and fluorescent tubes as needed. Tenant shall comply with all requirements of law,ordinance and any health officer,fire marshal or
building inspector regarding its use of the Premises. Tenant shall permit no waste,damage or injury to the Premises or Building and shall
at its own cost and expense replace any glass which may become broken in the Premises. At the expiration of the Term,or any renewal
term,Tenant shall surrender the Premises in good condition,reasonable wear and tear excepted,and shall repair any damage caused by
removal of any fixtures which Tenant is permitted hereunder to remove and shall remove all property from the Premises except that
property owned by Landlord, removing all trash, rubbish and similar items,leaving the same in a clean and neat condition.
ARTICLE VIII-INDEMNITY AND INSURANCE
SECTION 8.1 COVENANT TO HOLD HARMLESS.Tenant shall defend and hold harmless Landlord from any liability or claims for
damages to any person or any property in or upon the Premises unless caused by the wilful act of Landlord,including but not limited to,
the person and property of Tenant,and its officers,agents,employees and shall pay all expenses incurred by Landlord in defending any
such claim or action,including without limitation,attorney fees of Landlord and any judgment or court costs. All property kept,stored or
maintained in the Premises, regardless of ownership,shall be so kept,stored or maintained solely at the risk of Tenant.
SECTION 8.2. MECHANIC'S LIENS. Tenant shall indemnify and save Landlord harmless from all mechanic's,material men's or
other liens against the Premises or Building in respect to any labor,services, materials,supplies or equipment furnished to or upon the
request of Tenant,including without limitation,all expenses related to such liens such as attorney fees and interest;provided,however,
that this Tenant obligation shall not apply with respect to any improvements contracted for and caused to be made by Landlord,
hereunder. In the event a notice of intention to file mechanic's lien is filed against the Premises or Building in violation of the preceding
sentence,Tenant shall,upon demand made in writing by Landlord,cause the same to be removed at no expense to Landlord within ten
(10)days of the date of said notice.
SECTION 8.3. TENANT'S OBLIGATION TO CARRY PUBLIC LIABILITY INSURANCE. Tenant shall,during the entire term hereof or
any renewal term, keep in full force and effect a policy of public liability insurance with respect to the Premises listing Landlord as an
additional insured thereunder in which the limits of liability shall be not less than One Million Dollars($1,000,000.00)per person and Five
Million Dollars($5,000,000.00)for each accident or occurrence for bodily injury and One Million Dollars($1,000,000.00)for property
damage. Tenant shall furnish Landlord with a certificate or certificates of insurance or other acceptable evidence that such insurance is in
force at all times during the Term hereof or any renewal term,and that the same cannot be canceled without 20 days prior written notice
to Landlord.
SECTION 8.4. RELEASE FROM SUBROGATION. Each party hereto releases the other party from any liability which the released
party would have had, but for this section, to the releasing party arising out of or in connection with any accident or occurrence or
casualty:
(a) which is or would be covered by a fire and extended coverage policy,with vandalism and malicious mischief endorsement,or by
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a sprinkler leakage or water damage policy regardless of whether or not such coverage is being carried by the releasing party,
and
(b) to the extent of recovery under any other casualty,which accident,occurrence or casualty may have resulted in whole or in part
from any act or neglect of the released party,its officers,agents or employees;and insofar as Tenant is the releasing party,it will
also release the other tenants in the Building from any such liability as if the other tenants were each a released party under this
section. Notwithstanding anything contained in this Lease to the contrary,Landlord shall not be liable for any damage to person
or party arising from the negligent act or omission of any other tenant or occupant of the Building,and Tenant hereby expressly
waives any claim for such damages.
ARTICLE IX-DESTRUCTION OR DAMAGE TO PREMISES
SECTION 9.1. PARTIAL OR TOTAL DESTRUCTION OF BUILDING. In the event the Building comprising the Premises shall be
partially or totally destroyed by fire,explosion or other casualty,insurable under standard fire and extended coverage insurance,so as to
become partially or totally tenantable,the same shall be repaired as soon as possible at the expense of Landlord,unless Landlord shall
elect not to rebuild as hereinafter provided,and a proportionate part of the Rent in proportion to the portion of the Premises which are
rendered untenantable shall be abated until so repaired. If the damage is substantial,Landlord shall have a period of thirty(30)days after
the occurrence of any such casualty to decide whether or not the Building and Premises shall be repaired. In the event Landlord elects
not to rebuild and repair, this Lease shall terminate effective as of the date of the casualty and any prepaid Rent or CAM shall be
proportionately refunded to Tenant within thirty(30)days. In the event Landlord decides to rebuild and repair,it shall proceed as rapidly
as possible to begin and complete those repairs;Provided,however,that such repairs shall be completed within sixty(60)days of award
of a construction contract,and the Rent and CAM shall continue to be proportionately abated until the repair is completed,at which time
regular Rent and CAM payments shall be due and payable.
SECTION 9.2. RIGHTS ON TERMINATION. In the event of the termination of this Lease under the provisions in this Article
contained,all rent shall be adjusted to the date of such damage or destruction and all liabilities and obligations under this Lease shall be
immediately terminated.
ARTICLE X-EMINENT DOMAIN
SECTION 10.1. CONDEMNATION. If twenty percent(20%)or more of the Premises shall be taken by public authority,under the
power of eminent domain,Tenant may cancel this Lease by written notice of such termination and,thereupon,this Lease,and the Term
herein demised,shall cease and terminate.
SECTION 10.2. DAMAGES. All damages awarded for such taking under the power of eminent domain,whether for the whole or
a part of the Premises,shall be the property of Landlord;provided,however,that Landlord shall not be entitled to any award made to
Tenant for diminution in value or loss of the leasehold,loss of business,and depreciation to and cost of removal of stock and fixtures.
SECTION 10.3. PUBLIC AUTHORITY AND EMINENT DOMAIN DEFINED. The term"public authority"as used in this Article shall
include any corporation,firm or association,whether publicly or privately owned,having the statutory power of eminent domain. The
term "eminent domain"shall include the exercise of any similar governmental power and any purchase or other acquisition in lieu of
condemnation.
SECTION 10.4. RIGHTS ON TERMINATION. In the event of the termination of this Lease under the provisions in this Article
contained,all Rent and CAM shall be adjusted to the date of such termination and all liabilities and obligations under this Lease shall be
immediately terminated.
ARTICLE XI—REMEDIES
SECTION 11.1. DEFAULT. The occurrence of any one or more of the following events constitutes a default("Default") by
Tenant under this Lease:
(a) After ten(10)days,failure by Tenant to pay when due any Rent or CAM as provided in this Lease;
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(b) Failure by Tenant to pay on the date the same is due any other monies due and payable from Tenant to Landlord under this
Lease if such failure continues for more than ten (10)days after invoice is delivered to Tenant by Landlord.
(c) Failure by Tenant to cure forthwith,within a reasonable time prescribed by Landlord after receipt of notice from Landlord,any
hazardous condition which Tenant has created in violation of law or of this Lease;
(d) Failure by Tenant to observe or perform any other covenant,agreement,condition or provision of this Lease to be observed or
performed by Tenant if such failure continues for fifteen(15)days after notice to Tenant by Landlord,unless the nonobservance
or performance is of a nature that it cannot be corrected in fifteen (15) days and Tenant has commenced observance or
performance and is pursuing such correction with diligence;
(e) The levy under an order of execution, or the attachment by legal process of the leasehold interest of Tenant, or the filing or
creation of a lien in respect of such leasehold interest which Tenant does not discharge within ten(10)days;
(f) Failure by Tenant to observe or perform any of the covenants in respect to assignment and subletting set forth in Section 12.1;
(g) Tenant vacates or abandons the Premises(the transfer of a substantial part of the operations,business and personnel of Tenant
to some other location being deemed,without limiting the meaning of the term "vacates or abandons",to be a vacation or
abandonment within the meaning of this clause;
(h) notwithstanding that Tenant shall thereafter continue to pay the Rent and CAM due under this Lease;
(i) Tenant becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature,or makes an assignment
for the benefit of creditors,or applies for or consents to the appointment of a trustee or receiver for Tenant or for the major
part of its property;
(j) A trustee or receiver is appointed for Tenant or for the major part of its property and is not discharged within thirty(30)days
after such appointment;or
(k) Any proceedings for relief under any bankruptcy law,or similar law for the relief of debtors,are instituted by or against Tenant,
and,if instituted against Tenant,are allowed against Tenant or are consented to by Tenant,or are not dismissed within twenty
(20)days after such institution.
SECTION 11.2. LANDLORD'S REMEDIES UPON DEFAULT. If a default occurs, Landlord shall have the rights and remedies
hereinafter set forth,which shall be distinct,separate and cumulative and shall not operate to exclude or deprive Landlord of any other
right or remedy allowed to Landlord by law:
(a) Landlord may terminate this Lease during the Term or Renewal Term by giving to Tenant notice of Landlord's intention so to do,
in which event the Lease Term shall end,and all right,title and interest of Tenant hereunder shall expire on the date stated in
such notice;
(b) If Tenant voluntarily vacates the Premises prior to expiration of Lease,Landlord may terminate the right of Tenant to possession
of the Premises without terminating this Lease by giving notice to Tenant that Tenant's right of possession shall end on the date
stated in such notice,whereupon the right of Tenant to possession of the Premises or any part thereof shall cease on the date
stated in such notice;and
(c) Landlord may enforce the provisions of this Lease and may enforce and protect the rights of Landlord hereunder by a suit or
suits in equity or at law for the specific performance of any covenant or agreement contained herein,or for the enforcement of
any other appropriate legal or equitable remedy,including recovery of all moneys due or to become due from Tenant under any
of the provisions of this Lease.
SECTION 11.3. SURRENDER. If Landlord exercises either of the remedies provided for in subparagraphs(a)and(b)of Section
11.2,Tenant shall surrender possession and vacate the Premises immediately and deliver possession thereof to Landlord and Landlord
may then or at any time thereafter re-enter and take complete and peaceful possession of the Premises,with or without process of law,
full and complete license so to do being hereby granted to Landlord,and Landlord may remove all occupants and property therefrom,
using such force as may be necessary,without being deemed in any manner guilty of trespass,eviction or forcible entry and detainer and
without relinquishing Landlord's right to rental or any other right given to Landlord hereunder or by operation of law.
SECTION 11.4. TERMINATION OF POSSESSION. If Landlord terminates the right of Tenant to possession of the Premises
pursuant to and under any of those conditions set forth in Section 11.2(b),above,without terminating this Lease,such termination of
possession shall not release Tenant,in whole or in part,from Tenant's obligation to pay the Rent and CAM hereunder for the full Lease
Term for the period from the date stated in the notice terminating possession to the end of the Lease Term and shall at once mature and
be immediately due and payable by Tenant to Landlord,together with any and all other moneys due hereunder,and Landlord shall have
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the right to immediate recovery of all such amounts, subject to reduction for all sums received by Landlord as a consequence of its
reasonable mitigation efforts. In addition, Landlord shall have the right,from time to time,to recover from Tenant,and Tenant shall
remain liable for,any and all other sums thereafter accruing as they become due under this Lease during the period from the date of such
notice of termination of possession to the stated end of the Lease Term. In any such case, Landlord may re-let the Premises or parts
thereof to the account of Tenant for such rental,for such time(which may be for a term extending beyond the Lease Term)and upon
such terms as Landlord,in its reasonable discretion,shall determine. Also,in any such case,Landlord may make repairs,alterations and
additions in or to the Premises and redecorate the same to the extent deemed by Landlord reasonably necessary or desirable and in
connection therewith change the locks to the Premises,and Tenant shall upon demand pay the cost thereof together with Landlord's
reasonable and necessary expenses of re-letting. Landlord may collect the rents from any such re-letting and apply the same first to the
payment of the expenses of re-entry, repairs,the costs associated with return of the Premises to the basic shell condition as initially
provided by Landlord and described in Exhibit A,and the expenses of re-letting,and second to the payment of Rent herein provided to be
paid by Tenant and any excess or residue shall operate only as an offsetting credit against the amount of Rent as the same thereafter
becomes due and payable hereunder,but the use of such offsetting credit to reduce the amount of Rent due by Tenant,if any,shall not
be deemed to give Tenant any right, title or interest in or to such excess or residue and any such excess or residue shall belong to
Landlord solely;provided that in no event shall Tenant be entitled to a credit on its indebtedness to Landlord,in excess of the aggregate
sum(including Rent and CAM)which would have been paid by Tenant for the period for which the credit to Tenant is being determined,
had no Default occurred. No such re-entry or repossession, repairs, alterations and additions, or re-letting shall be construed as an
eviction or ouster of Tenant or as an election on Landlord's part to terminate this Lease unless a written notice of such intention be given
to Tenant nor shall operate to release Tenant in whole or in part from any of Tenant's obligations hereunder;and Landlord may,at any
time and from time to time,sue and recover judgment for any deficiencies from time to time remaining after the application,from time to
time,of the proceeds of any such re-letting.
SECTION 11.5. TERMINATION OF LEASE. If this Lease is terminated by Landlord as provided for by subparagraph(a)of Section
11.2,Landlord shall be entitled to recover from Tenant all the fixed dollar amounts of Rent and CAM accrued and unpaid for the period up
to and including such termination date,as well as all other additional sums payable by Tenant,or for which Tenant is liable or in respect
of which Tenant has agreed to indemnify Landlord under any of the provisions of this Lease,which may be then owing and unpaid,and all
costs and expenses, including court costs and attorneys' fees incurred by Landlord in the enforcement of its rights and remedies
hereunder,and in addition Landlord shall be entitled to recover as damages for loss of the bargain and not as a penalty(a)the aggregate
sum which at the time of such termination represents the excess,if any of the present value of the aggregate Rent and CAM at the same
monthly rate for the remainder of the Lease Term as then in effect pursuant to the applicable provisions of Lease,over the then present
value of the then aggregate fair rental value for the Premises for the balance of the Lease Term,such present worth to be computed in
which case on the basis of a three percent(3%)per annum discount from the respective dates upon which such rentals have been payable
hereunder had this Lease not been terminated;and(b)any damages in addition thereto,including reasonable attorneys'fees and court
costs,which Landlord shall have sustained by reason of the breach of any of the covenants of this Lease other than for the payment of
Rent and CAM.
SECTION 11.6. PROPERTY. All property removed from the Premises by Landlord pursuant to any provisions of this Lease or of
law may be handled,removed or stored by Landlord at the cost and expense of Tenant,and Landlord shall in no event be responsible for
the value,preservation,or safekeeping thereof. Tenant shall pay Landlord for all expenses incurred by Landlord's exercise of control over
Tenant's property. All property not removed from the Premises or retaken from storage by Tenant within thirty(30)days after the end of
the Lease Term,however terminated,shall be conclusively deemed to have been conveyed by Tenant to Landlord as by bill of sale without
further payment or credit by Landlord to Tenant,and Landlord may dispose of the same in its discretion by selling or discarding the same
or using the same for its own purposes,and Tenant hereby releases all claim whatsoever to such property.
SECTION 11.7. EXPENSES. Tenant shall pay all of the costs, charges and expenses, including court costs and reasonable
attorneys'fees,incurred by Landlord in enforcing Landlord's rights under this Lease or incurred by Landlord in any litigation,negotiation
or transactions relating to,or arising out of,this Lease in which Landlord,without fault,becomes involved or concerned. Landlord shall
pay all of the costs,charges and expenses,including court costs and reasonable attorneys'fees,incurred by Tenant in enforcing Tenant's
rights under this Lease or incurred by Tenant in any litigation,negotiation or transactions relating to,or arising out of,this Lease in which
Tenant,without fault,becomes involved or concerned.
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ARTICLE XII-ASSIGNMENT AND SUBLETTING
SECTION 12.1. TENANT MAY NOT ASSIGN OR SUBLET. Tenant may not assign or transfer this Lease or sublet the Premises,or
any part or parts thereof,to any person or party,including Tenant's member organizations,either by Tenant's act, involuntarily or by
operation of law. Landlord may assign this Lease without any consent or permission by Tenant.
ARTICLE XIII—MISCELLANEOUS
SECTION 13.1. NOTICES. Whenever under this Lease a provision is made for notice of any kind,such notice shall be in writing
and signed by or on behalf of the party giving or making the same,and it shall be deemed sufficient notice and service thereof if such
notice is to Tenant and sent by certified mail,return receipt requested,postage prepaid,to the Premises or to the last post office address
of Tenant furnished to Landlord for such purpose; and if to Landlord, sent by certified mail, postage prepaid, to 1400 S County-City
Building,227 W.Jefferson Blvd.,South Bend, Indiana 46601,or such other address as Tenant shall be notified to send notices.
SECTION 13.2. HOLDING OVER. In the event Tenant remains in possession of the Premises,and with the consent of Landlord,
after the expiration of the tenancy created hereunder,and without the execution of a new lease or an extension of this Lease,Tenant
shall be deemed to be occupying the Building and Premises as a tenant from month-to-month at one and one-half times the monthly Rent
due and payable at the end of the Lease Term or Renewal Term,provided that Tenant shall also pay recomputed CAM as determined by
the provisions of this Lease and subject to all the other conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy.
SECTION 13.3. REMEDIES CUMULATIVE—NO WAIVER. The various rights and remedies herein contained and reserved to each
of the parties shall not be considered as exclusive of any other right or remedy of such party,but shall be construed as cumulative and
shall be in addition to every other remedy now or hereafter existing at law,in equity,or by statute,and said rights and remedies may be
exercised and enforced concurrently and whenever and as often as occasion therefore arises. No delay or omission of the right to
exercise any power by either party shall impair any such right or power, nor shall be construed as a waiver of any default or as
acquiescence therein. One or more waivers of any covenant,term or condition of this Lease by either party shall not be construed by the
other party as a waiver of a subsequent or continuing breach of the same covenant,term or condition. The consent or approval by either
party to or of any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent similar act. Tenant waives the application of valuation and appraisement laws.
SECTION 13.4. GOVERNING LAW. The laws of the State of Indiana shall govern the validity,performance and enforcement of
this Lease and any action to enforce any of the terms of this Lease shall be brought in the State Courts situated in St.Joseph County,
Indiana. The invalidity or unenforceability of any provision of this Lease shall not affect or impair any other provision of this Lease.
SECTION 13.5. COMPLETE AGREEMENT. The headings of the several Articles and Sections contained herein are for convenience
only and do not define,limit or construe the contents of such Articles and Sections. All negotiations,considerations,representations and
understandings between the parties are deemed incorporated herein, and may be modified or altered only by agreement in writing
signed by the party to be bound. This agreement may be signed in multiple counterparts,each of which shall be considered an original.
SECTION 13.6. ACCORD AND SATISFACTION. No payment by Tenant or acceptance by Landlord of a lesser amount than the .
monthly Rent and CAM herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent and CAM due,nor
shall any endorsement or statement on any check or any letter accompanying any check or payment as payment of Rent or CAM be
deemed an accord and satisfaction,and Landlord may accept such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or CAM due or pursue any other remedy in this Lease provided.
SECTION 13.7. BINDING EFFECT. This Lease and all of the covenants,terms and conditions thereof and herein contained shall
inure to the benefit of and be binding upon the personal representatives,successors and assigns of the parties hereto,provided,however,
that no assignment by,from or through Tenant in violation of this Lease shall vest in the assignees any right,title or interest.
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SECTION 13.8. LIMITATION OF LANDLORD'S LIABILITY. The term "Landlord" as used in this Lease, as far as covenants or
agreements on the part of Landlord are concerned,shall be limited to mean and include only the owner or owners of Landlord's interest
in this Lease at the time in question,and in the event of any transfer or transfers of such interest,except a transfer by way of security,
Landlord herein named(and in the case of any subsequent transfer,the then transferor)shall be automatically freed and relieved from
and after the date of such transfer of all liability as respects the performance of any covenants or agreements on the part of Landlord
contained in this Lease thereafter to be performed,provided that any funds in the hands of such Landlord or the then transferor at the
time of such transfer,in which Tenant has an interest,shall be turned over to the transferee and any amount then due and payable to
Tenant by Landlord or the then transferor under any provisions of this Lease,shall be paid to Tenant,and provided further that upon any
such transfer,the transferee shall be deemed to have assumed,subject to the limitations of this Section,all the covenants,agreements
and conditions in this Lease contained to be performed on the part of Landlord, it being intended hereby that the covenants and
agreements contained in this Lease on the part of Landlord shall,subject as aforesaid,be binding on Landlord,its successors and assigns,
only during and in respect to their respective successive periods of ownership. In any event and notwithstanding any other provisions of
this Lease, no officer,director,agent, partner, beneficiary,trustee or employee of Landlord or any subsequent owner of the Premises
shall be responsible or liable in his or her individual or personal capacity for the performance or non-performance of any agreement,
covenant or obligation of Landlord in this Lease contained,and Tenant shall look solely to the Premises as the sole asset for the payment
and satisfaction of all obligations and liabilities hereunder of Landlord or any subsequent owner of the Premises.
SECTION 13.8.1. LIMITATION OF TENANT'S LIABILITY. The term "Tenant" as used in this Lease, as far as covenants or
agreements on the part of Tenant are concerned,shall be limited to mean and include only the owner or owners of Tenant's interest in
this Lease at the time in question.
SECTION 13.9. SUBORDINATION TO MORTGAGES. This Lease, and the rights of Tenant hereunder, shall be subject and
subordinate to the lien or liens of any mortgage or mortgages,now or at any time hereafter in force against the title of Landlord,or any
successor to Landlord,in the Building and the Premises,and to all advances made or hereafter to be made upon the security thereof. If
requested by the holder of any such mortgage or mortgages,Tenant shall execute and deliver to such holder an instrument,in form and
substance satisfactory to the holder,specifically subordinating this Lease to the lien of such mortgage or mortgages.
SECTION 13.10. ATTORNMENT. If by reason of any default on the part of Landlord as mortgagor under any mortgage or
mortgages to which this Lease is subordinated,any such mortgage is foreclosed by legal proceedings or extinguished by conveyance in
lieu of foreclosure or otherwise,Tenant, upon the election of the holder of any such mortgage, but not otherwise, will attorn to and
recognize such mortgage holder and its successors and assigns,including any purchaser in foreclosure or grantee of a deed in lieu thereof,
as Landlord under this Lease. Tenant shall execute and deliver at any time upon request of Landlord or any holder of a mortgage to which
this Lease is subordinate,an instrument(or clause)to evidence such attornment and containing the agreement of Tenant that no action
taken to enforce any such mortgage by reason of any default thereunder shall terminate this Lease or invalidate or constitute a breach of
any of the terms hereof. The attornment provisions of this Section are entirely independent of and not contingent upon the
subordination provisions of this Lease. If several requests by mortgagees having security interests with different priorities are made of
Tenant,Tenant shall attorn to the mortgagees in the order of their priority.
SECTION 13.11. PARKING. It is expressly understood by Tenant that no parking spaces are provided to or designated for use by
Tenant under this Lease. All employees and patrons of Tenant may park in any available public parking space and are subject to any
conditions or limitations placed upon such public parking space,including paying such fee as may be generally established for the use of
such public parking space. Landlord cannot guarantee that such public parking spaces will be available in any particular place or at any
particular time.
SECTION 13.12. MITIGATION/REASONABLENESS. Landlord shall use reasonable efforts to mitigate its damages in the event of
a Tenant default. Whenever either party to the Lease is required or requested to give its consent,such consent shall not be unreasonably
withheld.
SECTION 13.13. HAZARDOUS MATERIALS. Tenant shall not cause or permit any Hazardous Material to be brought upon,kept,
or used in or about the Leased Premises by Tenant,its agents,employees,contractors or invitees,without the prior written consent of
Landlord(which Landlord shall not unreasonably withhold as long as Tenant demonstrates to Landlord's reasonable satisfaction that such
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Hazardous Material is necessary or useful to Tenant's business and will be used,kept,handled 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 Leased Premises).If Tenant breaches the
obligations stated in the preceding sentence,or if the presence of Hazardous Material at the Building caused or permitted by Tenant
results in contamination of the premises,or if contamination of the premises by Hazardous Material otherwise occurs for which Tenant is
legally liable to Landlord for damage resulting therefrom,then Tenant shall indemnify,defend,and hold Landlord harmless from any and
all claims,judgments,damages,penalties,fines,costs,liabilities,or losses(including,without limitation,diminution in value of any or all
of the Building,damages for the loss or restriction on use of rentable or usable space,or of any amenity of the Building,damages arising
from any adverse impact on marketing of space,and sums paid in settlement of claims,attorneys'fees,consultant fees and expert fees)
which arise during or after the Term as a result of such contamination.This indemnification of Landlord by Tenant includes,without
limitation,costs incurred in connection with any investigation of site conditions or any clean-up,remedial,removal,restoration work,or
corrective action required by any governmental agency or political subdivision,or asserted in any third-party claim,because of Hazardous
Material present in the soil or ground water on or under the Building or nearby property.Without limiting the foregoing,if the presence
of any Hazardous Material at or around the Building caused or permitted by Tenant results in any contamination of the premises,Tenant
shall promptly take all actions at its sole expense as are necessary to return the premises to the condition existing prior to the
introduction of any such Hazardous Material to the premises;provided that Landlord's approval of such actions shall 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 Building.
As used herein, the term Hazardous Material means any material deemed, hazardous, toxic, or waste which is or becomes
regulated by any local governmental authority,the State of Indiana, or the United States Government.The term Hazardous Material
specifically includes,without limitation,any material or substance which is a)defined as a'hazardous substance'under I.C.13-7-8.7-1 of
the Indiana Hazardous Substance Response Trust Fund Act, b) petroleum or petroleum bi-products, c) asbestos, d) designated as a
'hazardous substance' pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), e) defined as a
'hazardous waste'pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,42 U.S.C.Section 6901 et seq.(42
U.S.C. Section 6903), f) defined as a 'hazardous substance' pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act,42 U.S.C.Section 9601 et seq.(42 U.S.C.Section 9601),or g)defined as a'regulated substance'pursuant
to Subchapter IX,Solid Waste Disposal Act(Regulation of Underground Storage Tanks),42 U.S.C.Section 6991 et seq.(42 U.S.C.Section
6991).
SECTION 13.14. OPTION TO RENEW. Landlord hereby grants Tenant the option to renew this Lease for one(1)additional Term
of Thirty Six(36)months(the"Renewal Term"). Tenant shall pay Rent for the Premises during the Renewal Term as provided in SECTION
4.2 hereof and Tenant shall pay CAM as provided in SECTION 4.3 hereof. The renewal option shall be exercised,if at all,in writing,at least
ninety(90)days but not more than one hundred twenty(120)days prior to the expiration of the Term of this Lease.
SECTION 13.14. SECURITY DEPOSIT. Tenant will,upon signature of this Lease,pay an amount equal to the Rent for one month
for the full and faithful performance by Tenant of all of its duties under this Lease and without any liability on Landlord for interest. The
Security Deposit will be held by Landlord,without interest,and may be applied to any liability,costs or damages caused to Landlord,
including but not limited to cleaning,breakage,repairs,non-payment,and/or non-performance,without waiving or limiting Landlord's
right to hold Tenant liable for any liability,costs or damages otherwise due. Any portion of the Security Deposit not so expended will be
returned forty-five days after termination or expiration of the Lease and surrender of the Premises and all keys to the Landlord.
[Signature Pages Follow]
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IN WITNESS WHEREOF,the undersigned have executed and delivered this Lease on the dates set forth below.
LANDLORD:
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
Signature
Printed Name and Title
South Bend Redevelopment Commission
ATTEST:
Signature
Printed Name and Title
South Bend Redevelopment Commission
Date:
STATE OF INDIANA
SS:
COUNTY OF ST.JOSEPH
Before me, a Notary Public in and for said County and State, personally appeared and
, known to me to be and , respectively, of the South Bend
Redevelopment Commission,and acknowledged the execution of the foregoing Lease this day of 2014.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
(SEAL)
, Notary Public
Commission expires: Resident of County,
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TENANT:
Tapastrie LLC
Signature 0_764249 T� , /k ee i7 A
or:, ' -1 AS `-
Printed Name and Title
ATTEST:
SleralA4k1Q
Printed Name and itie
Date: AD — i 5�
STATE OF INDIANA
)SS:
COUNTY OF ST.JOSEPH
Before me, a N�otar�j Public in and for said County and State, personally appeared rare/ 2,eC ICt�Y■ and
�C,,[,�fsI.3 i N0, mown to me to be " and 6t,&AL)A.C.TY-Z respectively, of Tapastrie LLC, and
acknowledged the execution of the foregoing Lease this day of ,2014.
IN WITNESS WHEREOF, I have hereunto subscribe. •4y name an. .ffixed my official,eal.
(SEAL) d tei I /I.Ml infra . _.
N tary Public
Commission expires: 2(;.5]0 I Resident of 01 w1••-� ••unty, )
DAVID M.HURD
NOTARY PUBLIC
SEAL
STATE OF INDIANA
MY COMMISSION EXPIRES FEBRUARY 25,2021
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