HomeMy WebLinkAboutFully executed purchase agreement CONTRACT FOR PURCHASE OF REAL ESTATE
This Contract for Purchase of Real Estate (the "Agreement") is entered into as of the date appearing
below, by and between CARMEL DADS’ CLUB, INC., an Indiana non-profit corporation (the "Seller")
and CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA, a political subdivision of the State of
Indiana, (the "Purchaser"). The Purchaser and Seller are referred to collectively as the "Parties" and
individually as a "Party".
1. Purchase and Sale. Purchaser hereby agrees to purchase and Seller agrees to sell the parcel of
land located in Hamilton County, Indiana, the approximate description of which is attached hereto
as Exhibit "A", and which shall be subject to Seller’s and Buyer’s approvals and more specifically
described upon completion of survey and title work as provided for herein, together with all rights,
privileges, interests, easements, buildings, improvements, fixtures and appurtenances thereto either
permanently installed or used in connection with the foregoing real estate (all referred to as the
"Real Estate"), subject to the terms and conditions contained herein.
2. Purchase Price and Payment. The total purchase price to be paid by the Purchaser to the Seller
for the Real Estate is ten dollars ($10.00) (the "Purchase Price") and other valuable consideration,
including the execution and delivery of the Development Agreements described in Section 20.
3. Earnest Money and Default. No Earnest Money shall be exchanged between the Parties. In the
event a Party fails or refuses to proceed to Closing after the completion or waiver of all conditions
contained herein, the sole remedy available to the non-defaulting Party shall be enforcement of this
Agreement by specific performance.
4. Closing and Possession. This transaction shall be closed at a time and place acceptable to the
Parties hereto (the "Closing") but in no event later than ninety (90) days after the Acceptance Date
(the "Closing Date"), unless an extension is agreed to in writing by the Parties hereto, or time is
otherwise extended as provided herein. Either Party may request a ten (10) day extension of the
Closing Date in the event the transaction cannot be closed due to delay in obtaining title evidence,
title clearance work or the Survey, as provided for herein.
5. Inspections. Purchaser acknowledges that it has had the opportunity to inspect the Real Estate and
will have the opportunity to inspect the Real Estate until Closing and that it is relying upon its own
inspection and that of its consultants regarding the condition of the Real Estate. Purchaser, its
employees, its agents and its independent contractors shall have the right to enter upon the Real
Estate, at reasonable times prior to Closing and upon at least twenty-four (24) hours prior notice to
Seller, or Seller’s designated agent, and conduct all inspections, tests and examinations that they
deem necessary. Purchaser shall maintain or cause each of its agents or independent contractors
that enter upon the Real Estate to maintain a policy of general liability insurance in full force and
effect at all times prior to the Closing Date in customary amounts, providing customary coverages
and naming Seller as an additional insured. Purchaser shall provide Seller with a certificate of
insurance evidencing such insurance coverage prior to any entry upon the Real Estate. Purchaser
shall save, hold harmless, and indemnify Seller from and against any and all costs, losses, damages,
injuries, claims, actions, liens and expenses (including reasonable attorney’s fees), of any kind or
nature, arising out of or resulting from: (a) Purchaser’s or its employees’, agents’, or independent
contractors’ entry onto the Real Estate; or (b) any inspections, test, investigation or other action
taken by Purchaser or its employees, agents or independent contractors with respect to the Real
Estate.
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6. Representations and Warranties. Seller hereby represents and warrants to Purchaser (and shall
be deemed to represent and warrant to Purchaser as of the date of Closing) that, to Seller’s
knowledge, each of the following statements is true and correct:
a. Neither the execution and delivery of this Agreement, nor the consummation of the
transaction contemplated hereby, will conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under any agreement to which Seller is
a party or by which Seller is bound;
b. Seller has good and merchantable title to the Real Estate;
c. Seller has full right, power and authority to sell, transfer, convey and assign all of the Real
Estate to Purchaser;
d. There is no condemnation or similar proceeding which is pending or threatened against the
Real Estate or any part thereof;
e. Seller has not received any notification from any governmental agency, authority or
instrumentality of any pending or threatened assessments on or against the Real Estate, for
the costs of improvements to be made with respect to the Real Estate or any part thereof;
and
f. There is no lease, option, purchase agreement, right of first refusal or other agreement
affecting the Real Estate or the operation, possession, use or control thereof.
7. Purchaser’s Conditions to Close. In addition to other provisions of this Agreement, Purchaser's
obligations hereunder are subject to satisfaction of the following conditions, unless waived in whole
or in part by Purchaser:
a. That Purchaser is able to obtain all zoning variances and waivers of development standards
as are necessary to construct the proposed facility described in Exhibit "B".
b. That upon execution of the Easements, the Real Estate shall enjoy rights of access to and
from public ways, roads and streets which are adequate for Purchaser's proposed use and
development.
c. That all representations and warranties made by Seller are true and correct in all material
respects as of the date of Closing.
d. That Purchaser has closed on and received the proceeds of the bond financing anticipated
to fund the Improvements.
8. Seller’s Conditions to Close. In addition to other provisions of this Agreement, Seller’s
obligations hereunder are subject to satisfaction of the following conditions, unless waived in whole
or in part by Seller:
a. The Parties have agreed on the Development Agreements and/or any of the Easements
pursuant to Section 20 of this Agreement.
b. Seller has approved the Survey pursuant to Section 9(b) of this Agreement.
9. Survey and Title Evidence.
a. Within sixty (60) days of the Acceptance Date, Purchaser, at Purchaser’s cost and expense,
shall obtain a current title insurance commitment for the Real Estate issued by First
American Title Insurance Company, 211 North Pennsylvania Street, Suite 1250,
Indianapolis, Indiana 46204; attn: Monica Chavez, e-mail: mochavez@firstam.com (the
"Title Insurer"), in which Title Commitment the Title Insurer shall agree to insure
merchantable and marketable fee simple title to the Real Estate in an amount equal to the
anticipated value of the Improvements (the "Title Commitment").
b. Purchaser, at Purchaser’s expense, shall obtain a survey conforming to the Minimum
Standard Detail Requirements for an ALTA/NSPS Land Title Survey, and certified as of a
current date to Seller and Purchaser (the "Survey"). The Survey shall establish the precise
legal description of the Real Estate, which shall be mutually acceptable to both Seller and
Purchaser, and shall certify the gross acreage of the Real Estate to within 1/100th of an
acre.
c. Purchaser may, within sixty (60) days of the Acceptance Date, give Seller written notice
of any exceptions to coverage enumerated in Schedule B of the Title Commitment and any
matters shown on the Survey to which Purchaser objects (collectively, "Title Objections").
Seller shall notify Purchaser in writing within five (5) days after receipt of Purchaser’s
notice of Title Objections whether Seller elects to Remove the same (the "Seller Objection
Response"). "Remove" with respect to any Title Objection shall mean that Seller shall
release, correct or satisfy or cause the Title Insurer to affirmatively insure over (as
applicable) such Title Objection at or prior to Closing. Failure of Seller to notify Purchaser
in writing within such five (5) day period shall be deemed an election by Seller on the last
day of such period not to Remove such Title Objections. If Seller elects not to Remove
one or more Title Objections, then Purchaser may either (x) terminate this Agreement by
written notice to Seller given within five (5) days of Seller's Objection Response (or
deemed response), and thereafter Seller and Purchaser shall not have any further liability
hereunder except for obligations which by the express terms of this Agreement survive the
termination of this Agreement, or (y) waive such Title Objections and proceed to Closing.
Failure of Purchaser to terminate this Agreement within five (5) days of Seller's Objection
Response (or deemed response) shall be deemed an election by Purchaser to waive such
Title Objections and proceed to Closing. Any such Title Objection so waived (or deemed
waived) by Purchaser shall be deemed to constitute a permitted exception and the Closing
shall occur as herein provided without any reduction of or credit against the Purchase Price.
Notwithstanding the foregoing, Seller shall be obligated to satisfy (or in the case of
mechanics’ liens, insure over at Seller’s cost) at Closing all (aa) mortgages and security
interests created by Seller and encumbering the Real Estate, (bb) mechanics’ liens or
notices thereof relating to work performed at the request of Seller, and (cc) liens for
delinquent real estate taxes and assessments, and Purchaser shall not be obligated to
identify the same as a Title Objection (collectively, the "Mandatory Cure Items").
10. Taxes and Assessments. The Real Estate is currently exempt from real property taxes. Seller
shall be responsible for any and all real property taxes and assessments due and payable following
the Closing. This Section shall survive the Closing Date.
11. Risk of Loss. Seller shall bear the risk of loss or damage to the Real Estate occurring subsequent
to the Acceptance Date and until delivery of possession to Purchaser. If damage occurs and the
damage cannot be repaired, either Party shall have the right to terminate this Agreement upon
written notice to the other Party, and thereafter Seller and Purchaser shall not have any further
liability hereunder except for obligations which by the express terms of this Agreement survive the
termination of this Agreement.
12. Sales Expenses. Seller and Purchaser agree that all sales expenses are to be paid in cash prior to
or at the Closing.
a. Seller's Expenses. Seller agrees to pay all costs of releasing the Mandatory Cure Items.
b. Purchaser's Expenses. Purchaser agrees to pay all expenses related to deed and other
transfer document preparation; costs of the Survey; any escrow and closing fees charged
by the Title Insurer, the cost of the commitment for an ALTA owner’s policy of title
insurance and any premium for any title policy issued in connection therewith; any insured
closing fee; recording expenses for the Deed and Easements; all charges incurred by
Purchaser in connection with its due diligence or investigation of the Real Estate; and all
other expenses stipulated to be paid by Purchaser under other provisions of this Agreement.
13. Attorneys' Fees. Any Party to this Agreement who is the prevailing Party in any legal or equitable
proceeding against any other Party to this Agreement brought under or in relation to the Agreement
or the transaction contemplated hereby shall be additionally entitled to recover court costs and
reasonable attorneys' fees from the non-prevailing Party.
14. Duties of Seller at Closing. At Closing, Seller shall deliver: (a) a duly executed limited warranty
deed conveying fee simple title to the Real Estate to Purchaser, subject to (i) the lien of non-
delinquent real estate taxes and assessments, (ii) liens, encumbrances, easements, rights-of-way,
restrictions, covenants and conditions of record, and (iii) all matters that would be disclosed by an
accurate inspection or survey of the Real Estate; (b) a duly executed non-foreign affidavit in form
and substance required by applicable law; (c) a duly executed vendor’s affidavit in form reasonably
required by Title Insurer; (d) a duly executed Sales Information Disclosure form in form and
substance required by applicable law; (e) duly executed Development Agreements; (f) duly
executed Easements as described in Section 20; and (g) any and all other documents required by
applicable laws to consummate the sale of the Real Estate.
15. Duties of Purchaser at Closing. At Closing, Purchaser shall deliver: (a) the Purchase Price; (b) a
duly executed Sales Information Disclosure form in form and substance required by applicable law;
(c) duly executed Development Agreements; (d) duly executed Easements as described in Section
20; and (e) any and all other documents required by applicable laws to consummate the sale of the
Real Estate.
16. AS IS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER
EXPRESSLY SET FORTH IN THIS AGREEMENT OR EXPRESSLY SET FORTH IN ANY
DOCUMENTS DELIVERED BY SELLER TO PURCHASER AT CLOSING, PURCHASER
WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT
PURCHASER IS PURCHASING THE REAL ESTATE IN ITS "AS-IS, WHERE IS"
CONDITION "WITH ALL FAULTS" AS OF THE CLOSING DATE AND SPECIFICALLY
AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR
GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR
ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF
ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY
SET FORTH IN THIS AGREEMENT OR EXPRESSLY SET FORTH IN ANY DOCUMENTS
DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER SPECIFICALLY
DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING (A) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE REAL ESTATE, INCLUDING THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE REAL ESTATE, (C)
THE SUITABILITY OF THE REAL ESTATE FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR
FUTURE DEVELOPMENT OF THE REAL ESTATE, (D) THE COMPLIANCE OF OR BY THE
REAL ESTATE OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE REAL ESTATE, (F) THE MANNER OR
QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE REAL ESTATE, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF THE REAL ESTATE, (H) THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS AT, ON, UNDER, OR ADJACENT TO THE REAL ESTATE OR ANY OTHER
ENVIRONMENTAL MATTER OR CONDITION OF THE REAL ESTATE, (I) ANY LEASES,
CONTRACTS OR OTHER AGREEMENTS AFFECTING THE REAL ESTATE, OR (J) ANY
OTHER MATTER WITH RESPECT TO THE REAL ESTATE. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE
REAL ESTATE WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER SHALL NOT BE
LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE REAL ESTATE, OR THE
OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT OR IN THE
DOCUMENTS DELIVERED BY SELLER TO PURCHASER AT CLOSING. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED
AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE REAL ESTATE AND
HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE
NEGOTIATION OF THIS AGREEMENT. SELLER HAS MADE NO AGREEMENT TO
ALTER, REPAIR OR IMPROVE ANY OF THE REAL ESTATE. Purchaser acknowledges that
it will have the opportunity to inspect the Real Estate prior to the Closing Date, and during such
period, observe its physical characteristics and existing conditions and the opportunity to conduct
such investigation and study on and of the Real Estate and adjacent areas as Purchaser deems
necessary, and by closing the transactions contemplated by this Agreement at Closing, Purchaser
will be deemed to FOREVER RELEASE AND DISCHARGE Seller from all duties, obligations,
responsibility and liability pertaining to the Real Estate in any way, including its condition,
valuation, salability, financability or utility of the Real Estate, or its suitability for any purpose
whatsoever (including with respect to the presence in the soil, air, structures and surface and
subsurface waters, of Hazardous Materials or other materials or substances that have been or may
in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may
need to be specially treated, handled and/or removed from the Real Estate under current or future
federal, state and local laws, regulations or guidelines, and any structural and geologic conditions,
subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on,
under, adjacent to or otherwise affecting the Real Estate), including liabilities under CERCLA;
EXCEPT this Section 16 shall not be construed to release, discharge or waive any claims against
Seller for the breach of any representation or warranty of Seller expressly set forth in this
Agreement or expressly set forth in any documents delivered by Seller to Purchaser at Closing
(collectively, the "Excluded Claims"). Purchaser, by closing the transactions contemplated by this
Agreement, will be deemed WAIVE any and all objections and complaints (including federal, state
and local statutory and common law based actions, and any private right of action under any federal,
state or local laws, regulations or guidelines to which the Real Estate is or may be subject, including
CERCLA) concerning the physical characteristics and any existing conditions of the Real Estate,
whether arising before or after the date of this Agreement, with the exception of the Excluded
Claims. Purchaser further hereby assumes the risk of changes in applicable laws and regulations
relating to past, present and future environmental conditions on the Real Estate and the risk that
adverse physical characteristics and conditions, including the presence of Hazardous Materials or
other contaminants, may not have been revealed by its investigation. For purposes hereof, (a) the
term "CERCLA" means the Comprehensive Environmental Response Compensation and Liability
Act and other federal laws governing Hazardous Materials as in effect on the date of this
Agreement, together with its implementing regulations and guidelines as of the date of this
Agreement; and (b) the term "Hazardous Materials" means any substance which is (i) designated,
defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste,
pollutant or contaminant under any applicable law, as currently in effect as of the date of this
Agreement (ii) petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum
products, (iii) PCBs, (iv) lead, (v) friable asbestos, (vi) flammable explosives, (vii) infectious
materials or (viii) radioactive material. The terms of this Section 16 shall survive the Closing.
17. Default. In the event all conditions to performance have been met or waived and a Party shall
refuse to comply with the terms of this Agreement, the other Party’s sole remedy shall be to seek
enforcement of this Agreement by specific performance.
18. Condemnation. If prior to the Closing Date condemnation proceedings are commenced against
any portion of the Real Estate, Purchaser may, at its option, terminate this Agreement by written
notice to Seller within ten (10) days after Purchaser is advised of the commencement of
condemnation proceedings.
19. Indemnification and Release. Regardless of whether or not separate, several, joint or concurrent
liability may be imposed upon Seller, Purchaser shall indemnify and hold harmless Seller from and
against all damages, claims and liability arising from or connected with Purchaser’s control or use
of the Real Estate after Closing, including, without limitation, any damage or injury to person or
property. Regardless of whether or not separate, several, joint or concurrent liability may be
imposed upon Purchaser, and excepting those matters set forth in Section 5 above, Seller shall
indemnify and hold harmless Purchaser from and against all damages, claims and liability arising
from, or connected with, Seller’s control or use of the Real Estate prior to Closing, including
without limitation, any damages or injury to person or property. These indemnifications shall not
include any matter for which Seller or Purchaser is effectively protected against by insurance. If
either Seller or Purchaser, without fault, shall become a party to litigation commenced by or against
the other party, then the other party shall indemnify and hold harmless Seller or Purchaser,
respectively. The indemnifications provided by this Section shall include all legal costs and
attorneys’ fees incurred by the indemnified party in connection with any such claim, action or
proceeding.
20. Development Agreements and Additional Easements. At the Closing, the Parties shall execute
and deliver a Project Agreement containing the agreement of the Parties concerning Purchaser’s
construction of the Improvements on the Real Estate and a Maintenance and Use Agreement
concerning the operation and use of the Real Estate and Improvements by Seller after substantial
completion of the Improvements (together the "Development Agreements"). The Development
Agreements shall contain terms substantially similar to the Term Sheet attached hereto as Exhibit
"C". At the Closing, the Parties shall execute and deliver the following non-exclusive easements
(collectively, the "Easements"): (a) an adequate vehicle access easement across the east side of
Seller’s remaining property, (b) a utility easement across the west side of Seller’s remaining
property as further defined by the Survey, (c) adequate cross drainage easements, and (d) a
temporary construction easement necessary to construct on the Real Estate an indoor sports facility
as described in Exhibit "B" (the "Improvements"). In the event that the Parties do not agree on the
Development Agreements and/or any of the Easements prior to the Closing Date, either Party shall
have the right to terminate this Agreement upon written notice to the other Party, and thereafter
Seller and Purchaser shall not have any further liability hereunder except for obligations which by
the express terms of this Agreement survive the termination of this Agreement.
21. Notices. All notices shall be deemed to be delivered three (3) business days after the notice is
deposited in the U.S. Mail or when actually delivered by Federal Express or other courier and
addressed to the following addresses.
If to Seller:
Camel Dads’ Club, Inc.
5459 E. Main Street
Carmel, Indiana 46033
Attn: Jack Beery
E-mail: jbeery@carmeldadsclub.org
with a copy to:
Ice Miller LLP
One American Square
Suite 2900
Indianapolis, Indiana 46282
Attn: Blake J. Schulz
E-mail: Blake.Schulz@icemiller.com
If to Purchaser:
Clay Township of Hamilton County
10701 N. College Avenue
Indianapolis, IN 46280
Attn: Douglas Callahan
Email: dcallahan@indy.rr.com
with a copy to:
Kroger Gardis & Regas LLP
111 Monument Circle, Suite 900
Indianapolis, IN 46204
Attn: Brian C. Bosma
Email: bcb@kgrlaw.com
22. Binding Effect and Law. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, executors, administrators, legal representatives, successors
and assigns. This Agreement constitutes the sole and only Agreement of the parties hereto and
supersedes any prior understandings or writings or oral Agreements between the parties respecting
the transaction and cannot be amended, except by their written consent, and shall be construed
under and in accordance with the laws of the State of Indiana. Time is of the essence of this
Agreement.
23. Brokers. Purchaser and Seller hereby represent that they have not dealt with any broker in
connection with this transaction. Each party will indemnify the other from any cost for broker's
fees claimed through that party.
24. Survival/Merger. Except for the provisions of this Agreement which are explicitly stated to
survive the closing, (a) none of the terms of this Agreement shall survive the closing, and (b) the
delivery of the Purchase Price and the limited warranty deed (pursuant to Section 14) and the
acceptance thereof shall effect a merger and be deemed the full performance and discharge of every
obligation on the part of Purchaser and Seller to be performed hereunder.
25. Severability and Survivability. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
This Contract for Purchase Real Estate is hereby executed this 18th day of June, 2019 (the
"Acceptance Date").
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EXHIBIT "A"
Legal Description
EXHIBIT "B"
The Improvements
The Improvements will include a multi-purpose building of up to 160,000 square feet to be located at the
south end of Badger Fields in Carmel, Indiana. The building will house a soccer field, up to four (4)
basketball courts, offices, restrooms, concessions, and storage. Attendant site development will include an
access drive, utility easement parking and landscaping.
EXHIBIT "C"
Term Sheet for Management and Use Agreement
for Carmel Indoor Sports Facility
Parties:
• Carmel Dads’ Club, Inc. (the "CDC")
• Clay Township of Hamilton County, Indiana (the "Township")
Assumptions:
• The Parties will enter into a Project Agreement evidencing their respective rights and
responsibilities prior to finally approving the financing for the construction of the Facility
• The CDC will convey to the Township for no consideration (via a limited warranty deed)
approximately 4.0 gross acres of land (the "Real Estate"), in a location mutually agreed upon by
the Parties
• The Facility will be constructed with proceeds from $8.5 Million Township GO bond (the "Bond")
• The Township will repay the Bond over no more than a 20 year period ending in 2039
• The Facility (including all utility improvements) will be owned and constructed by the Township,
at its cost and expense
• The Parties will enter into a Management and Use Agreement ("MUA") providing for the CDC's
use of the Facility and the responsibilities provided for below
Objectives:
• Construct, in a turn-key condition, a two-story indoor sports facility of approximately 120,000
square feet, surrounding improvements, and all utility infrastructure serving the improvements, as
further illustrated in Exhibit "A" (the "Facility") for the benefit of Carmel youth
• Facilitate year-round opportunities for sports and recreation programming by the CDC and
opportunities for Facility use by members of the public
• Maintain the future option of cooperative use by Carmel Clay Parks & Recreation at times the
Facility is not in use by the CDC
Management and Use Agreement:
• 20 year term, terminating when the Bond is paid in full or redeemed and the Real Estate and Facility
are transferred to the CDC
• The CDC shall not be responsible for any rent and/or use payments under the MUA
• The CDC shall have the right to charge and collect rents and/or usage fees for the Facility
• As soon as the Bond is repaid in full, subject to the Conditions to Transfer set forth below, the
Township shall transfer the Real Estate, including the Facility, to the CDC without further
consideration
• The MUA shall provide for continued use of the Facility by the CDC in the event the Township
should be dissolved or consolidated
• The Parties shall mutually agree upon the Township's post-construction repair and replacement
obligations relating to defects in the initial construction of the Facility (including materials and
workmanship)
• The CDC shall be granted the right to invoke all construction and product warranties related to the
initial construction of the Facility and the Township shall cooperate with the CDC regarding the
same
• CDC shall have the sole right to grant Facility naming and/or sponsorship rights (both internal and
external) (collectively, the "Sponsorship Rights"), subject to the Township Board’s prior written
approval, which approval shall not be unreasonably withheld, conditioned or delayed. The
Township Board shall have fifteen (15) days to either approve or disapprove any proposed
Sponsorship Rights. In the event the Township Board does not approve or disapprove any proposed
Sponsorship Rights within this fifteen (15) day period, the proposed Sponsorship Rights shall
automatically be deemed approved by the Township Board. All of the proceeds, income and other
fees generated from the Sponsorship Rights shall be deposited in an account in the name of CDC
(the "Facility Operating Escrow Account"), which Sponsorship Proceeds shall be used only by
CDC for Facility operating expenses and capital repairs and improvements. CDC, on a quarterly
basis, shall provide to the Township Board bank statements for the Facility Operating Escrow
Account and any reasonably requested supporting information detailing the payments and/or
withdraws from the Facility Operating Escrow Account.
CDC Rights, Roles & Responsibilities:
• Direct and manage day-to-day operations of the Facility consistent with the Objectives
• Direct and manage all sports programming offered in the Facility
• Direct and supervise open public use of the Facility when not interfering with CDC programming
• Maintain and keep the Facility in good and safe order, condition, and repair, including:
o Providing adequate janitorial and cleaning programs
o Providing all maintenance, repairs, and replacements to the Facility, including capital
repairs and replacements
o Implementing a regularly scheduled program of preventive maintenance and repair
o Providing all maintenance, repairs, and replacements for sidewalks, driveways and parking
areas servicing the Facility, including snow removal
o Providing all maintenance, watering, repairs, and replacements for landscaping
surrounding the Facility including interior and exterior sports fields
o Maintaining Facility utilities in CDC’s name and timely paying all utility billings
• Maintain insurance on the Facility after substantial completion in accordance with limits reasonably
established by the Township and add the Township and its officials as additional named insureds
• Collect revenues and pay all expenses for operations, programming, and maintenance
• Hire, discharge, and supervisor all labor, employees, and contractors required for the management,
operation, and maintenance of the Facility
• Adopt and enforce appropriate rules for the Facility
• Install any signage deemed necessary or appropriate
• Make alterations to the Facility, landscaping, and grounds; provided, however, if such alterations
are structural in nature, such alterations shall be subject to the prior review and approval of the
Township (which approval shall not be unreasonably withheld, conditioned or delayed)
• Permit the Township to enter the Facility at all reasonable times for the purpose of inspecting the
Facility; provided, however, such inspections shall not unreasonably interfere with CDC's and/or
its employees, contractors, invitees, tenants and/or users use and enjoyment of the Facility
• With respect to CDC's operation of the Facility, comply with all applicable federal, state and local
laws, ordinances, and regulations
• Enter into good faith discussions with Carmel Clay Parks and Recreation upon request to provide
for future cooperative use of the Facility
• Indemnify the Township and its officials from all claims and damages related solely to the use of
the Facility by the CDC or members of the public
• At all times maintain its status as a 501(c)(3) non-profit entity
Township Rights, Roles & Responsibilities:
• The initial design, construction and commissioning of the Facility (including the construction and
installation of all utility infrastructure for the Facility) shall be completed at the sole cost and
expense of the Township in accordance with plans and specifications mutually approved by CDC
and the Township and in compliance with all applicable laws, rules, regulations, ordinances and
statutes, including, but not limited to, the Americans with Disabilities Act ("ADA")
• If there are material alterations to the Facility during construction and/or changes in any line items
of the project budget, such alterations and/or changes in line items shall be subject to the prior
review and approval of the Township and the CDC (which approval shall not be unreasonably
withheld, conditioned or delayed by either Party)
• At all times during construction and through substantial completion, maintain insurance on the
Facility in accordance with limits reasonably established by the Township (including Builder’s
Risk insurance) and add the CDC and its officers and employees as additional named insureds
• Maintain the right to Inspect the Facility as required after substantial completion to monitor
compliance with the preventive and capital maintenance plan
Funding:
• Township will be responsible for providing all funding for the initial construction of the Facility
• In the event that proceeds from the Bond and/or other Township sources are not sufficient to
construct the Facility pursuant to plans and specifications that are acceptable to the CDC, the CDC
shall have the right to contribute and/or obtain additional funds to cover the additional construction
costs
• Except as expressly set forth herein and/or otherwise contained in the MUA, the CDC will be
responsible for funding all expenses of the Facility after substantial completion of construction
Records and Reporting:
• The CDC shall maintain books and records with respect to the operating revenues and expenses of
the Facility, together with customary supporting records, statements, and receipts in compliance
with all applicable laws for inspection and audit
• All financial records for the operation of the Facility shall be open to inspection and audit by the
Township (at its own expense) and the State Board of Accounts (if required by applicable law)
• The CDC shall provide an annual report to the Township regarding finances and operations of the
Facility at a date and time mutually agreeable to the Parties
Conditions to Transfer
• There has been no material default by the CDC under the MUA which has not been timely cured
• The CDC has maintained its existence and 501(c)(3) status
• Such due diligence inquiries and title insurance as the CDC shall require at its sole expense
• Compliance by the Parties with all laws applicable to the transfer