10-24-77 Council Meeting Minutes

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REGULAR MEETING OCTOBER 24, 1977 REGULAR MEETING RECONVENED (CONTINUED) If, at any time, the Lessee fails to pay any such tax or assessment or fails to furnish evidence thereof as above provided, Lessor may, at its option, pay such tax or assessment, together with all interest and penalties thereon, and any amount so paid, with interest thereon at the rate of seven (7 %) percent per annum shall be additional rental payable by the Lessee under this Lease and shall be payable on demand; provided, however, that the Lessor shall be under no obligation to pay any such tax or assessment and any action or non - action of the Lessor in this regard shall not relieve the Lessee of any consequence of its default. 4. Restoration. In the event any part of the said utility facilities shall be partially or totally destroyed, whether by fire or any other casualty, so as to render the same unfit, in whole or part, for use and rendition of such utility services by the Lessee, it shall then be the obligation of the Lessor to restore and rebuild the facilities as promptly as may be done, unavoidable strikes and other causes beyond the control of the Lessor excepted; provided, however that the Lessor shall not be obligated to expend on such restoration or rebuilding more than the amount of the proceeds received by the Lessor from the insurance provided for in Clause 7 hereof. If there is in force on the date of such partial or total destruction, insurance on the demised premises and the rental value thereof in accordance with the provisions of Clause 7 hereo the rent shall be abated from the time of such partial or total destruction until the time that the utility facilities are again fit for operation. In the case of total destruction, the rental so abated shall be apportioned on a daily basis determined by dividing the annual rental provide for in Clause 2 hereof by the total number of day sin the year or years that the facilities are unfit for operation. In the case of partial destruction, the rental shall be apportioned on the basis of income from the portion damaged. If, and so often as, rent abates under this provision, the term of this lease shall be ex- tended for a period of time equal to the period of time of the rent abatement; provided, however, that in no event shall the term of this lease as so extended exceed a period of fifty (50) years. The proceeds from the rental value insurance shall be paid to the Lessor and shall be credited by Lessor to the payment of rental owing from Lessee for such extended period or periods of the term. 5. Alterations and Repairs. As additional rent, Lessee shall, at its own expense, during the full term of this Lease, keep the leased facilities and every part thereof in good condition j and repair. Lessor shall have the right of access to the facilities, at.reasonable times, for the purpose of inspecting the same. Lessee will not permit any mechanic's or materialman's or other lien to stand against the leased facilities for any labor or material furnished Lessee in connection with work of any character performed on said facilities by or at the direction of Lessee. If, at any time, the Lessee, fails to make necessary repairs, Lessor may, at its option, cause such repairs to be made, for which purpose it shall have free access to the facilities, and any amount so expended, with interest thereof at seven (7 %) percent per annum, shall be additional rental payable by the Lessee under this Lease and shall be payable on demand. 6. Extensions and Additions. Lessee shall be permitted at all times when there is no default herein, to make extensions and construct additions in the area to be served by the said utility facilities as described on Exhibit A and are specifically authorized to expend for such additions and extensions "other funds" not generated from the income of the operation of the leased facilities. Said facilities shall be construed as merged with and made a part of the leased facilities, provided, however, that upon any default and subsequent surrender and return of the leased facilities to the Lessor as provided in Clause 12, Lessor shall have the right to obtain a full and clear title to the same (including any land and easements upon which the same are located) by the payment to the Lessee of twenty -five (25 %) percent of the gross income collected from the customers served by said additions and extensions for a period of one hundred twenty (120) months but not to exceed an amount equal to said "other funds" less ap- plicable System Charges not subject to lease rental collected thereon. The debt and evidence of indebtedness in relation to such "other funds" for any such additions or extensions in the area described in Exhibit A shall be junior and subordinate to the terms and obligations of this lease. 7. Insurance. As additional rent, Lessee, at its own expense, will, during the full term of the lease, keep the insurable portion of the demised premises insured against physical loss or damage, however caused, with such exceptions as are ordinarily required by insurers of the demised facilities or facilities of a similar type, in good and responsible insurance companies to the approval of the Lessor. Such insurance shall be in an amount equal to One Hundred Five (105 %) Percent of the full replacement cost of the leased facilities as certified by an archi- tect or engineer employed by Lessee, but to be satisfactory to the Lessor, on the effective date of this Lease and on or before the first day of April of each year thereafter. During the full term of this Lease, Lessee may also, at its own expense maintain rent or rental value insurance in an amount equal to the full rental value of the leased facilities for a period of one (1) year against physical loss or damage of the type insured against pursuant to the preceding re- quirements of this clause. Such policies shall be for the benefit of persons having an insurabl interest in the demised premises and shall be made payable to the Lessor or to such other person or persons as the Lessor may designate. Such policies shall be countersigned by an agent of the insurer who is a resident of the State of Indiana, and such policies, together with a certificat of the insurance commissioner certifying that the persons countersigning such policies are duly qualified in the State of Indiana as resident agents.of the insurers on whose behalf they may have signed, and the certificate of the architect or engineer hereinbefore referred to shall be deposited with the Lessor. If, at any time, the Lessee fails to maintain insurance in accordant with this clause, such insurance other than rent or rental value insurance, may be obtained by the Lessor and the _amount paid therefore, together with.interest thereon at the rate of seven (7 %) percent per annum, shall be added to the amount of rental payable by the Lessee under this Lease and shall be payable upon demand; provided, however, that the Lessor shall be under no obligation to obtain such insurance and any action or non - action of the Lessor in this regard shall not relieve the Lessee of any consequence of its default in failing to obtain such in- surance, including its obligation to continue the rental payments in case of total or partial destruction of the facilities as provided in Clause 4 thereof. 8. Indemnity. Lessee shall at all times during the term hereof, and each extension thereo keep in effect, in responsible companies, liability insurance in the names and for the benefit of Lessee and Lessor with limits of not less than $2,000,000.00 for bodily injury and $500,000.0 for property damage.