HomeMy Public PortalAbout041-2019 - Parks - Lease Agreement - Indiana American Water - ReservoirLEASE AGREEMENT
This lease agreement is made and entered into on the /4_ day of*6L.464/ ,
2019 between Indiana -American water Company, Inc.. ("Lessor"), a public utility corporation
organized and authorized to do business in the state of Indiana, and the City of Richmond,
Indiana, by and through its Board of Public Works and Safety ("Lessee"), a political subdivision
in the state of Indiana.
SECTION ONE: TERM AND PREMISES
Lessor leases to Lessee the premises which generally consists of certain land generally consisting
of Section 14, 15, 21, 2210 27 and 28 located in Wayne Township, Indiana and more particularly
described on.Exhibit A, and more particularly identified as (the "Premises"), which includes
rights of ingress, egress, and parking, for a term beginning retroactively to the 21" day of
August, 20.12, and ending on the 2 I 't day of August, 2042 (the "term"). This Agreement shall
automatically renew for two (2) additional ten (10) year terms unless either party notified the
other, in writing, at least six (6) months prior to the expiration of the term of its intention not to
renew the Agreement. Subsequent to the second ten (10) year term, this agreement shall
continue on a month -to -month basis unless thirty -(3 0) days written notice to terminate the
tenancy is provided, in writing, by either party.
SECTION TWO: RENT
Lessee shall pay to Lessor as annual rent the sum of one dollar and 00/100 ($1.00):
SECTION THREE: USE OF PREMISES
The Premises shall be used for recreational purposes. Specifically, Lessee is permitted to engage
in the following activities:,
i. Establish recreational facilities and organize, control, or otherwise recreational
activities to which the public is permitted to visit and utilize at the direction of
Lessee. Said recreational activities include, but are not limited to: boating, boat
�A Contract No. 41-2019
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rentals, kayaking, fishing, participation in a dog park, picnicking, radio --controlled
aircraft field', sale of fish bait, operation and offering of a boat dock, swimming,
fishing, and restaurant operation regardless of whether such operation is by Lessor or
its Lessee, which shall include the ability to offer for sale beer, alcohol, and. wine, and
any other activity as approved in writing by Lessor. The foregoing are offered by
way of illustration, and do not purport to limit the Lessee's future recreational use of
the Premises.
ii. Lessee may further, at its discretion, permit residents who are title owners, of real
estate that abuts the Reservoir, at the time of execution of this Lease, to install one (1)
undivided dock on the Leased Premises with the location of the same to be directly
connected to the real estate owned by the title owner. The dock installation process
shall allow Lessor 30 days to review and approve or reject installation plans.
Installed docks shall not impede in any way maintenance or other necessary work
needed to maintain the Reservoir. Any fee associated with the docks would inure to
the benefit of the Lessee.
iii. The parties hereto acknowledge a certain lease agreement dated the 22nd day of
August, 1962, wherein Lessor leased the Premises to Lessee, and that said.Lease has
since expired. During the foregoing lease term, Lessee erected certain structures on
the Premises, which include a service center, dog park, shelter houses and associated
facilities, restrooms, fish cleaning station, pole barn, playground and equipment
associated therewith, and docks. Lessor agrees to the continued operation of these
. structures, for the period of the term described herein. Should Lessee desire to
construct new structures, or materially alter any existing structures on the Premises,
Lessee agrees that it shall obtain approval from Lessor for such new construction or
modifications. Should Lessee desire to engage in new construction for the purpose of
adding recreational facilities, or to materially modify any of the present structures, it
shall submit, in writing to Lessor, a detailed plan of specifications for the proposed
development and a plat or description of the are to be developed, the approval of
which shall not be unreasonably withheld.
The Lessee shall not be permitted to engage in the following activities:
i. No hunting, shooting of firearms or trapping, shall be conducted or permitted on the
Demised Premises unless Lessee receives prior written approval from Lessor which
shall be granted or denied for any reason, no reason, and in Lessor's sole discretion;
and
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ii. No permanent residences, overnight motels, trailer parks or other quarters shall be
established or permitted except that permanent camp sites for Boy' Scouts, Girl Scouts
or other such organized groups may be established with Lessor's approval if adequate
toilet and sanitary facilities are installed therewith pursuant to the regulations of the
Indiana State Department of Health and any County or City sanitary or -health
ordinances and regulations and, except that the Lessee may with -the Lessor's approval
establish one or more caretaker's house; and.
iii. the Lessee shall not sell or permit the sale or use of live fish bait consisting of fish
belonging to the carp, rough fish or shad family as defined and specified by the State
of Indiana, stock the waters on the Demised Premises with any fish belonging to the
carp, rough fish or shad family as defined and specified by the State of Indiana; and
iv. Unless otherwise marked, all vessels operating must do so at a no wake, no wave
speed; and
V. No water shall be taken from the Reservoir or streams tributary thereto by the Lessee
nor shall Lessee permit any such taking of water unless the written consent of the
Lessor shall have first been obtained.
SECTION FOUR: CARE AND CONDITION OF PREMISES
Lessee shall maintain and keep the Premises in good repair and clean condition (making no
alterations or additions, except as allowed in accordance with Section Three). Lessee shall
refund Lessor for the cost of all repairs made necessary by the negligent or careless use of the
Premises and will surrender the Premises at the termination of this Lease in a similar condition as
when taken, with the exception of reasonable wear and tear resulting from careful usage and any
permitted modifications.
SECTION FIVE: SUB-LEASINGIASSIGNMENT
Lessee shall not assign this Lease or sublet any part of the Premises without the prior written
consent of Lessor; and any such attempted assignment without such prior written consent shall
be void and shall constitute a breach of this Lease. Sub -letting may be allowed only with the
prior written consent from the Lessor, remaining on the Premises and execution of proper
applications and references and sublease forms by all appropriate parties. Notwithstanding the
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foregoing, the parties acknowledge and agree that Lessee is the owner of a service center and the
real property on which it- is located, which is landlocked by the real property owned by
Lessorthat is the subject of this lease, and nothing contained herein shall prevent Lessee from
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leasing this property subject to the rights and limits granted herein. Lessee's tenant shall not at
any time use or occupy the Premises, or permit anyone else to use or occupy the Premises, (a) in
any matter that violates. the provisions of the Lease, or (b) in any unlawful matter, -or (c) so as to
violate any insurance policy then issued in respect of the Premises, or (d) so as to create a
nuisance. Further, the parties have previously executed a License Agreement of a term
consistent with the term of this Agreement, which permits Lessee, and its assigns, Iesees,
licensees, parents, subsidiaries, divisions, business units, departments, and/or affiliated entities,
and/or each of its respective employees, agents, officers, and/or directors to utilize the leased
premises for the purpose of ingress and egress to the real property owned by Lessee,* with the
same being.attached hereto and incorporated herein by reference. -
SECTION SIX: ACCESS TO PREMISES
Lessor shall have free access at all reasonable hours to the Premises for the purpose of inspecting
the Premises or making alterations or repairs.
SECTION SEVEN: UTILITIES
The Lessee shall pay for all of the utilities associated with the leased Premises, including but not
limited to: electric, TV cable, telephone, trash, water, gas, Internet, and sewer to be supplied to
the Premises and shall arrange for their connection and disconnection; and shall indemnify and
hold Lessor harmless from any such charges for these utilities.
SECTION EIGHT: INSURANCE
The Lessee is advised and understand and agree that personal injury to, and damage to the
personal property of, Lessee, Lessee's guests, invitees, or uninvited visitors in or on the Premises
is not insured by the Lessor for either damage or loss, and the Lessor assumes no liability for any
such damage or loss. Lessee is further advised that, if insurance coverage is desired by Lessee,
Lessee should inquire of Lessee's insurance agent regarding a renter's hazard and liability policy
of insurance. Lessor shall not be responsible for personal injury, or loss of food, clothing,
furniture, or any of Lessee's other possessions in the event of appliance failure, water leak or
water backup, bursting pipes, fire, loss of utility service or other events, and in no event shall
Lessor be responsible for theft, vandalism, or mysterious disappearance of Lessee's property,
regardless of the state of security on the Premises.
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At no expense to Lessor, the Lessee shall (1) obtain and keep in force during the. term of this
Lease, and any renewals or extensions hereof, and (2) either extend its own insurance such that it
covers its sub -contractors or require its sub --contractors to obtain and keep in force during the
terms of their respective contracts, the following minimum insurance limits and coverage: The
insurance coverage limits stated below are minimum coverage requirements, not limitations of
liability, and shall not be construed in any way as Lessor's acceptance of the responsibility of
Lessee.
A. Commercial General liability:
$1,000,000 per occurrence Combined Single Limits
$1,000,000 General Aggregate
$1,000,000 Products and Completed operations Aggregate
CGL ISO 1996 or later Occurrence form including Premises and Operations Coverage, Products
and Completed Operations, Coverage for Independent Contractor, Personal Injury Coverage and
Blanket Contractual Liability, and Contractor Protective Liability if the Lessee subcontracts to
another all or any portion of the work. Completed Operations shall be maintained for a period of
three (3) years following Final Completion for any construction, renovation, repair and or
maintenance service.
B. workers' Compensation
a. Applicable Federal or State Requirements: Statutory Minimum
b. Employer's Liability:
Each Accident $L000X0
Each Employee -Disease Policy Limit —Disease $11000.000
Policy Limit — Disease $130005000
c. other States Insurance
The workers' Compensation policy shall also include U.S. Longshoreman and Harbors workers'
Compensation Act Coverage, if any work shall be done over or within 100 feet of any body of
water, or otherwise at the sole discretion of Lessor. It shall provide maritime (Jones Act)
coverage if a boat or vessel of any type is used.
C. Automobile Liability (including owned, hired, borrowed and non -ownership liability)
Bodily Injury and Property Damage $1,000,000 each occurrence Combined Single Limits.
D. Umbrella Liability
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$4,000,000 each occurrence and annual aggregate in excess of Employer's Liability, General'
Liability and Automotive Liability (no more restrictive than underlying insurance).
E. Lessee assumes all risk of damage of Lessee's property and shall maintain property
insurance for all such property.
The minimum liability limits required may be satisfied through the combination of the primary
General Liability, Employers' Liability, and Automotive Liability limits with an Umbrella
Liability policy (with coverage no more restrictive than the underlying insurance) providing
excess limits at least equal to or greater than the combined primary limits.
All Commercial General Liability including completed operations --products liability coverage,
and Automobile liability insurance shall designate Lessor, its parent, affiliates and subsidiaries,
its directors, officers and employees as an Additional Insured. All such insurance should be
primary and non-contributory, and is required to respond and pay prior to any other insurance or
self-insurance available to Lessor. In addition to the liability limits available, such insurance will
pay on behalf or will indemnify Lessor for defense costs. Any other coverage available to Lessor
applies on a contingent and excess basis. Such insurance shall include appropriate clauses
pursuant to which the insurance companies shall ,waive its rights of subrogation against Lessor.
The Lessee and any of its sub -subcontractors shall f n-nish, prior to the start of work, certificates
or adequate proof of the foregoing insurance including, if specifically requested by Lessor,
copies of the endorsements, naming Lessor as an Additional Insured, and insurance policies.
Current certificates of insurance shall be provided prior to the commencement of work and shall
be maintained until completion of the Lease. Such certificates shall evidence that Lessor is
included as an Additional Insured, except workers compensation and professional liability, if
applicable. Such insurance shall include appropriate clauses pursuant to which the insurance
companies shall waive its rights of subrogation, in states where such waiver is allowed, against
Lessor. The Lessee shall notify Lessor in writing, at least thirty (30) days prior to cancellation, of
a material change in a policy.
Carriers providing coverage will be rated by A.M. Best with at -least an A -rating and a financial
size category of at least Class VII. Such cancellation or material alteration shall not relieve the
Lessee of its continuing obligation to maintain insurance coverage in accordance with this
contract. Carriers shall be licensed in state(s) where work shall be performed.
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If the Lessee shall fail to procure and maintain said insurance, Lessor, upon written notice, may,
but shall not be required to, procure and maintain said, but at the expense of the Lessee. In the
alternative, Lessor may declare a default hereunder and, unless such default is timely cured,
terminate the Lease. Unless and until the default is cured, neither the Lessee nor its servants,
employees or agents will be allowed to enter. upon the Demised Premises.
Lessee shall increase its insurance coverage, as required, but not more frequently than- each
calendar year-, if, in the opinion of Lessor, the amount of public liability and/or grope* damage
insurance coverage at that. time is not adequate.
SECTION NINE DEFAULT AND REMEDIES OF LESSOR
If Lessee shall default in fulfilling any covenant or condition of this lease, or if Lessor shall deem
objectionable or improper any conduct of Lessee or of any of those visiting the Premises, the
Lessor may, when applicable, give Lessee notice as. is prescribed by law, of Lessor's intention to
terminate the tenancy, and at the expiration of the notice period, the term of the tenancy shall
expire and the Lessee shall then quit and surrender the Premises to Lessor. Notwithstanding any
termination of the tenancy, Lessee shall remain fully liable for all rental payments, repairs, and
other obligations under this Lease.
SECTION TEN INDEMNIFICATION
The Lessee agrees to hold harmless Lessor, and to defend and indemnify Lessor against any suits,
claims, judgments, costs or expenses by any other person or entity which results from damage
sustained by any person or entity that is connected with the Leased Premises which is caused by
the negligence of Lessee, or any of its tenants, representatives or employees. This would include
any injuries, including death, sustained by any of Lessee's tenants, employees, representatives,
contractors, agents, assigns, or invitees which is connected to use of or presence at the Leased
Premises. -
SECTION ELEVEN, WAIVER
One or more waivers of any covenant, condition, rule, or regulation by the Lessor shall not be
construed as a waiver of a future or further breach of the same or any other covenant, condition,
rule or regulation.
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SECTION TWELVE WAIVER OF SUBROGATION
Each party releases and discharges the other party, and any agent, employee, or representative of
the other party, of and from any liability whatsoever subsequently arising from loss, damage, or
injury caused by fire or other casualty for'which insurance (permitting waiver of liability and
containing waiver of subrogation) is carried by the injured party at the time of the.loss, damage,
or injury to the extent of any recovery of the insured party under the insurance. waiver of
subrogation shall apply to all insurance as allowed by. Indiana law. _
SECTION THIRTEEN EMINENT DOMAIN
If the whole or any part of the Premises shall be condemned or taken by any governmental
authority for any purpose, the term of this Lease shall cease on the part so taken from the day
that possession of the part shall be taken and the rent shall be paid up to that day. If only a part of
the Premises is so taken, Lessee may continue in the possession of the remainder of the same
under the terms of this Lease, except that the rent shall be reduced in proportion to the amount of
the Premises taken for a public purpose.
SECTION FOURTEEN MORTGAGES
The Lessor shall have the right to mortgage the Premises and the Lessee's rights hereunder shall
be subordinate to all mortgages now or hereafter of record affecting the real estate of which the
Premises form a part.
SECTION FIFTEEN LIENS
Lessee shall not have the right or authority to encumber the Premises or to permit any person to
claim or assert any lien for the improvement or repair of the Premises made by Lessee. Lessee
shall notify all parties performing work on the Premises at'Lessor's request that the Lease does
not allow any liens to attach to Lessor's interest.
SECTION SIXTEEN FORCE MAJEURE
Interruption or curtailment of any service maintained in the buildings in which the. leased
Premises are located, if caused by strikes, mechanical difficulties, or any other cause beyond the
Lessor's control, whether similar or dissimilar to those enumerated, shall not entitle Lessee to
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any claim against the Lessor or to any reduction in rent, nor shall the same constitute
constructive or partial eviction, unless the Lessor shall fail to take such measures as may be
reasonable iri the circumstances to restore the service without undue delay
SECTION SEVENTEEN MODIFICATIONS
It is agreed, except as herein otherwise provided, that no amendment or change or addition to this
Lease shall be binding, upon the Lessor or Lessee unless reduced to writing and signed by the
_ parties. It is further agreed that this is the entire agreement of the parties.
SECTION EIGHTEEN NOTICE
Any notices, to be given under this Lease shall be given in person or by U.S. Mail to Lessor at
Lessor's address and to Lessee c/o of its City Attorney, or any other address of Lessee listed
herein, or at such other addresses as may be given by either party to the other in writing by
certified mail. Notice, if made by certified mail, shall be deemed received by the other party on
the fifth weekday after the day of postmark.
SECTION NINETEEN SEVERABILITY AND INTERPRETATION CONSISTENT
WITH LAW
This Lease is intended to comply with all applicable Indiana statutes relative to rental
agreements. If any provision of this Lease is deemed by a court of competent jurisdiction to
violate an Indiana statute, the violation is inadvertent. If a provision is found to be so violative,
the provision shall be considered void and severed from the Lease and the balance of the Lease
shall remain in full force and effect. Nothing contained in this Lease shall be construed as
exculpating the Lessor from liability for the Lessor's failure to perform or Lessor's negligent
performance of a duty imposed by laver. Also, nothing contained in this Lease shall be construed
as releasing either party from a duty to mitigate or minimize the damages to the other party.
SECTION TWENTY LESSON TRANSFERS
If the Premises are sold, Lessor will be released from any liability subsequently accruing under
this Lease if Lessor's successor has assumed in writing Lessor's obligations under this. Lease.
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SECTION TWENTY-ONE JOINT AND SEVERAL
In the event that this Lease is executed by more than one person as Lessee(s), then the liability of
the persons so signing shall be joint and several and a judgment against one shall be no bar to an
action against the other(s).
SECTION TWENTY -Two CAPTIONS
The captions to the sections in this Lease are inserted only as a matter of convenience.
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SECTION TWENTY-THREE SUCCESSORS BOUND
The covenants and agreements contained in the Lease shall bind the respective heirs,
representatives, successors, and assigns of the parties.
SECTION TWENTY-FOUR JURISDICTION AND VENUE
All questions concerning the meaning, execution, construction, effect, validity, and enforcement
of the Lease shall be determined pursuant to the laws of the State of Indiana. The place for filing
any suits or other proceedings with respect to this. Lease shall be in the county in which the
Premises are located.
SECTION TWENTY-FIVE ELEVATION
Anything in this Lease to the contrary notwithstanding, this Lease and Lessee's rights hereunder
are subject to all incidents of the use by the Lessor of the Reservoir and Middlefork Dam; and
the Demised Premises and Lessor's Premises for. public water supply or allied purposes,
including but not limited to the Lessor's right to raise or lower the water level in the Reservoir,
when the service demands of the area make it necessary or required by the Lessor in the
operation of the Middlefork Reservoir. The Lessor may enter upon the Demised Premises at any
time for the. purpose of taking any action required for such purpose. The Lessee shall engage in
no activity hereunder that in any way interferes with said purposes and the Lessor shall be under
no duty to maintain the water in the Reservoir at any particular level, either maximum or
minimum, or to do any other act with respect to the condition or use of the Reservoir or the
surrounding areas.
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ACKNOWLEDGMENT
In Witness Whereof, the parties hereto have signed this Lease as of the date first written above.
Mike Foley,
Board President, Parks and Recreation
Date:
David :� now,�M '00;1
Date: 03 ZO c
Indiana American Water Company, Inc.
Title:
Date:
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