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HomeMy Public PortalAbout002-2007 - RSD - Ernst Concrete - Water Land Lease AgreementWATER / LAND LEASE AGREEMENT THIS AGREEMENT ("Lease") is entered into this 131h day of November , 2007 and referred to as Contract No. 2-2007, by and between the City of Richmond, a municipal corporation acting by and through its Board of Sanitation Commissioners (hereinafter referred to as the "CITY") and Ernst Concrete Enterprises, Inc., d/b/a Richmond Concrete, 5390 Indiana 121, Richmond, IN 47374 or 3361 Successful Way, P.O. Box 13577, Dayton, OH 45413-0577 (COMPANY). In consideration of the terms and covenants of this Agreement, and for other good and valuable consideration, the parties agree as follows: 1. LEASED PROPERTY. Subject to the terms and conditions of this Lease, CITY leases to COMPANY and COMPANY leases from CITY a certain portion of real property owned by CITY, which property is located in Wayne County, Indiana, and described on the attached Exhibit "A" the ("Property") which Property is subject to all existing easements, covenants, conditions, and restriction of record, if any. COMPANY shall have the right at its sole cost and expense, to install, operate and maintain on the leased Property the waterline easement and/ or any improvements described and attached as Exhibit `B". COMPANY also shall have the right at its sole cost and expense, to install, operate and maintain on the leased Property the utility easement and/ or any improvements described and attached as Exhibit "C". 2. TERM. The initial term of this Lease shall be fifty (50) years, commencing upon the date this document is executed by CITY and COMPANY ("Commencement Date"). If COMPANY fails to begin installation and use of the water within 60 days of execution, this lease will lapse unless rent payments as set out below are made. If COMPANY has failed to install its waterline upon the site described in this Lease within 12 months of execution, even though all rent payments have been made, CITY may choose to terminate this Lease. If termination is chosen, CITY will inform COMPANY in writing. COMPANY shall have the right to extend this Lease for additional five-year term, subject to all the terms and conditions of this Lease. This Lease shall automatically be renewed for each successive renewal term unless COMPANY shall notify CITY of COMPANY's intention not to renew the Lease at least six (6) months prior to the expiration of the any original or any renewal term. RENT. a. This Agreement shall be for an initial term of fifty (50) years, subject to other provisions of this document, commencing on the date this lease is fully executed. Rent shall be paid in equal annual installments, on or before January 15th of each year, to the CITY. b. The rent for the first five (5) years of the initial term of this Lease shall be $2,500.00 per year. The rent for years six through 10 of the initial term of this lease shall be Contract No. 2-2007 Page 1 of 6 $2,650.00 per year. The rent for years 11 through 15 of the initial term of this lease shall be $2,809.00 per year. The rent for years 16 through 20 of the initial term of this lease shall be $2,977.54 per year. The rent for years 21 through 25 of the initial term of this lease shall be $3,156.19 per year. The rent for years 26 through 30 of the initial term of this lease shall be $3,345.56 per year. The rent for years 31 through 35 of the initial term of this lease shall be $3,546.30 per year. The rent for years 36 through 40 of the initial term of this lease shall be $3,759.08 per year. The rent for years 41 through 45 of the initial term of this lease shall be $3,964.62 per year. The rent for years 46 through 50 of the initial term of this lease shall be $4,223.70 per year. USE. a. COMPANY may use the leased Property for the installation, operation, and maintenance of the waterline for the extraction and removal of water as may be assigned to COMPANY by CITY and for the operation of related waterline in accordance with the provisions of this Lease. COMPANY shall use the leased Property in compliance with all federal, state, local laws and regulations. If for any reason COMPANY's use of the leased Property fails to comply with any federal, state or local law and COMPANY fails to bring its use within compliance within thirty (30) days of written notice of such noncompliance, this Lease shall be terminated as provided herein, unless sooner authorized by such law. CITY agrees to reasonably cooperate with COMPANY in obtaining, at COMPANY's expense, any licenses and permits required for COMPANY's use of the leased Property. b. COMPANY's installation, operation, and use of its facilities under this Lease shall not damage or interfere in any way with CITY's water operations or related repair and maintenance activities. CITY, at all times during this Lease, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the leased Property and to temporarily interfere with COMPANY's leasehold improvements as may be necessary in order to carry out any of such activities. CITY agrees to give reasonable advance notice of such activities to COMPANY and to reasonably cooperate with COMPANY to carry out such activities with a minimum amount of interference with COMPANY's operations. c. At all times during this Lease, CITY shall be granted access to a tap for CITY's use of the water line. COMPANY shall install and maintain the tap for CITY's use. CITY will have access to the installed tap at no charge to CITY. IMPROVEMENTS AND ACCESS. a. COMPANY shall have the right, at its sole cost and expense, to install, operate and maintain the waterline on the leased Property described in Exhibit "A". COMPANY's installation of all such waterline, personal property, and facilities shall be done according to plans approved by CITY, and no waterline or property shall be subsequently relocated without CITY's approval which approvals shall not be unreasonably withheld or delayed. The waterline shall remain the exclusive property of COMPANY. Page 2 of 6 b. COMPANY may update or replace the waterline from time to time without the prior written approval of CITY, provided that the replacement waterline is not greater in number or size than the existing waterline and provided that their location on the leased Property is unchanged. If COMPANY updates or replaces the waterline that is greater in number or in size or the location on the leased Property is changed, COMPANY shall seek from the City written approval. c. At all times during this Lease, CITY hereby grants to COMPANY a nonexclusive easement for ingress, egress, and access over the Property which gives COMPANY access to the waterline and to the base of the water at no additional charge to COMPANY. d. COMPANY shall provide CITY with "as built" drawings of the waterline installed on the Property and improvements installed on the Property which show the actual location of the waterline and improvements. Such drawings shall be accompanied by a complete and detailed inventory of the waterline and personal property actually placed on the Property. e. COMPANY shall have sole responsibility for the maintenance, repair, and security of its waterline, personal property, and any other leasehold improvements, and shall keep the same in good repair and condition during the Lease term. f COMPANY shall place no advertising on the site or on any structure on the site. TERMINATION. a. Except as otherwise provided herein, this Lease may be terminated by one party upon thirty (30) days written notice to the other party as follows: 1) By either party, upon a default of any covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default to the other party; 2) By COMPANY, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and/or operation of the facilities or COMPANY business; or 3) By CITY, if COMPANY's use of the Property becomes illegal under any federal, state or local law, rule or regulation. b. Upon termination of this Lease for any reason, COMPANY shall remove all of its waterline, personal property, and leasehold improvements from the Property within sixty (60) days after the date of termination, and shall restore the Property to the condition it was in on the Commencement Date of the term of this Lease ordinary wear and tear excepted, all at COMPANY's sole cost and expense. Any such property which is not removed by end of said sixty (60) day period shall become the property of CITY. c. In the event this agreement is terminated by CITY any prepaid rents prorated from the date the Property is reasonably restored to their condition on the commencement date of this Lease will be refunded to COMPANY. In the event of termination for any other Page 3 of 6 reason than nonpayment of rent, the prorated rent to be returned to COMPANY are subject to deductions of costs incurred by CITY if COMPANY fails to remove the waterline within 60 days of notice of termination. 7. PROHIBITION AGAINST DISCRIMINATION. Pursuant to Indiana Code 22-9-1-10, COMPANY, any sub -contractor, or any person acting on behalf of COMPANY or any sub- contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. 8. INSURANCE. a. COMPANY shall provide Comprehensive General Liability Insurance coverage, including premises/operations coverage, independent contractor's liability, completed operations coverage, contractual liability coverage, and CITY will be held harmless for acts of outside vendors in a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence, and One Million Dollars ($1,000,000.00) aggregate, and name CITY as an additional insured on such policy or policies. COMPANY may satisfy this requirement by an endorsement to its underlying Insurance or umbrella liability policy. b. COMPANY shall provide to CITY, prior to Commencement Date of the Lease Term, evidence of the required insurance in the form of a certificate of insurance issued by an insurance company licensed to do business in the State of Indiana, which includes all coverage required above. 9. INDEMNIFICATION. Except for the negligent acts or willful misconduct of CITY's agents or employees, COMPANY agrees to indemnify, defend, and hold harmless CITY and its elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which may be asserted against or incurred by CITY or for which CITY may be held liable, which arise from the negligence, willful misconduct, or other fault of COMPANY or its employees, agents, or subcontractors in the performance of this Lease or from the installation, operation, use, maintenance, repair, removal, or presence of COMPANY's waterline and/ or facilities on the Property. 10. RELEASE OF LIABILITY. COMPANY hereby agrees to release and hold harmless the CITY and all officers, employees, or agents of the same from all liability which may arise in the course of COMPANY's performance of its obligations pursuant to this Agreement. Page 4 of 6 11. NOTICES. All notices, requests, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested to the following addresses: a. Board of Sanitation Commissioners Municipal Building 50 North 5t' Street Richmond, IN 47374 b. Ernst Enterprise, Inc., d/b/a/ Richmond Concrete 3361 Successful Way P.O. Box 13577 Dayton, OH 45413-0577 12. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction and venue of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, COMPANY is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right COMPANY may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. If any court or tribunal declares any provision of this Agreement unenforceable, all other provisions of this Agreement shall remain in full force and effect. In the event of any breach of this Agreement by COMPANY, and in addition to any other damages or remedies, COMPANY shall be liable for all costs incurred by CITY in its efforts to enforce this Agreement, including but not limited to, CITY's reasonable attorney's fees. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption Page 5 of 6 or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Sanitation Commissioners By:_S/S Rodney Phenis Rodney Phenis, President Date: November 13, 2007 Approved:_S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: November 14, 2007 "COMPANY" ERNST ENTERPRISES, INC. d/b/a RICHMOND CONCRETE By:_S/S Mark M. Van de Griff Printed: (Mark Van de Griff� Date: November 27, 2007 Title: —Vice President Page 6 of 6