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Home My WebLink AboutBPW/Carmel Clay Parks & Rec City of Cannel Carmel/Clay Board of Parks&Recreation 11-03-03 MANAGEMENT AGREEMENT AMENDMENT APPROVED AS TO FORM BY, `a This Amendment to the Management Agreement("Amendment")by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("Owner") and the Carmel/Clay Board of Parks and Recreation("Manager") is made this t(-7 day of.Dece dnbeic 2003. RECITALS WHEREAS, the following facts are true: A. By Management Agreement(the"Agreement") executed by the Manager and the Owner on or about July 14, 2003 and July 16, 2003 respectively, (the"Agreement"),Manager, upon the terms and conditions set forth therein, agreed to manage and develop Owner's land located at 10601 Hazel Dell Parkway, Carmel, Indiana 46033 (the"Real Estate" or"Hazel Landing Park"); and B. Manager was in the process of bidding out the construction contracts for the development of Phase I of Hazel Landing Park when it discovered that a portion of the real property on which it needed to place its improvements was in fact owned by the Town of Fishers, Indiana(the"Fishers Property"), more particularly described and illustrated on EXHIBIT A; and C. Pursuant to Manager's request,the Town of Fishers agreed to allow Manager a temporary right to enter the Fishers Property so that Manager's construction process would not be delayed; and D. The temporary right of entry granted by Fishers was evidenced by a document entitled"TOWN OF FISHERS/CARMEL CLAY BOARD OF PARKS AND RECREATION RIGHT OF ENTRY" and dated July 22, 2003 (the"Right of Entry"); and E. Such Right of Entry provides that it shall continue until such time as the parties execute a complete long term lease in a form mutually acceptable and authorized by the appropriate jurisdictional bodies; and F. Such long term lease agreement has been or is in the process of being completed, accepted and authorized by the appropriate jurisdictional bodies(the"Lease Agreement"); and G. On the effective date of the Lease Agreement,the Right of Entry shall become null and void and of no further force and effect. H. Manager now has management responsibility over the Fishers Property as well as over the Real Estate; and I. The Management Agreement is silent as to the means by which the Owner will provide access to the Real Estate from Hazel Dell Parkway over an existing improved access easement utilized by the Owner's Utility Department, more particularly illustrated on the attached EXHBIT B. incorporated herein by this reference, (the"Access Road"); and J. The Management Agreement is silent as to the Manager's rights to terminate should the Owner fail or refuse to fund the Manager's budgets, all as provided in the Interlocal Agreement; and K. Subsequent to the execution of the Management Agreement, Marathon Ashland Pipe Line, LLC ("MAPL")has requested that the appropriate parties execute a License Agreement to permit the planned encroachment on and over the real property interest held by MAPL ("the MAPL Property Interest") and obtain an indemnification all as set forth in the License Agreement attached hereto as EXHIBIT C; and L. Manager and the Owner wish to amend the Management Agreement so that it addresses the Manager's termination rights,the Owner's obligation to maintain and provide adequate and proper vehicular access to the Real Estate and to include within the Manager's indemnification obligation, the Access Road, the MAPL property interest, and the Fisher's Property. NOW THEREFORE, in consideration of the premises, mutual covenants and terms contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. ARTICLE II: THE REAL ESTATE ; TERM The parties hereto agree that a new Section 2.3 is hereby added to Article II of the Agreement as follows: "2.3 In addition to the termination rights otherwise described in this Section and/or in Article XII below, Manager shall have the right, pursuant to the notice provisions hereof, to terminate this Agreement in the event that Owner(a)fails to perform its obligations as set forth in this Agreement and/or(b) fails to fund its proportionate share of Manager's annual budget pursuant to the Interlocal Agreement. If Owner fails to perform its obligations hereunder, and does not,within(60) calendar days from the date on which it receives written notice of such failure from Manager, cure the same, Manager may thereafter,but shall not be required to, either(a) supply the omitted performance and any reasonable expense incurred by Manager in doing so shall constitute a further obligation of Owner which shall be payable within sixty(60) calendar days of Owner's receipt of an itemized invoice from Manager regarding same, or(b) terminate this Agreement and upon such termination deliver possession of the Real Estate to Owner in its then condition, normal wear and tear and approved improvements thereon and therein excepted. Notwithstanding the foregoing, in the event of a bona fide emergency,Manager may perform such of the Owner's obligations hereunder as are reasonably necessary to resolve the emergency only, at Owner's cost and expense. The parties hereto agree that a new Section 2.4 is hereby added to Article II of the Agreement as follows: "2.4 Owner hereby agrees to provide at no additional cost to Manager, reasonable vehicular access from Hazel Dell Parkway to the Real Estate over the existing roadway more particularly illustrated on Exhibit"B" attached hereto and incorporated herein (the Access Road"). 2. ARTICLE X: INDEMNITY The parties hereto agree that Sections 10.1 and 10.3 of the Agreement shall be amended to read as follows: "10.1 Manager agrees to indemnify and hold Owner harmless from any and all liabilities, losses, costs, damages and expenses, including, but not limited to, attorney fees, Owner incurs or is subject to on account of or as a result of any bodily injury to, or the death of, any person, or the loss or destruction of, or damage to, any property, which injury, death or damage arises, or is alleged to arise, out of Manager's possession or use of, or actions on,the Real Estate, the Fisher's Property, the MAPL Property Interest and the Access Road, unless such injury, death or damage is the result of Owner's negligent conduct or intentional action on the Real Estate,the Fisher's Property,the MAPL property interest and/or the Access Road. This obligation shall survive the termination of this Agreement. 10.3 Owner agrees to indemnify and hold Manager harmless from any and all liabilities, losses, costs, damages and expenses, including, but not limited to, attorney fees,Manager incurs or is subject to on account of or as a result of any bodily injury to, or the death of, any person, or the loss or destruction of, or damage to, any property, which injury, death or damage arises, or is alleged to arise, out of Owner's use of, or actions on, the Real Estate, the Fisher's Property, the MAPL Property Interest and the Access Roach unless such injury, death or damage is the result of Manager's or the Town of Fishers'negligent conduct or intentional action on the Real Estate,the Fisher's Property,the MAPL property interest and/or the Access Road. This obligation shall survive the termination of this Agreement. 3. NO OTHER CHANGES. Except for the changes expressly contained herein, the Management Agreement shall not be affected by this Management Agreement Amendment and all of its existing terms and conditions shall continue in full force and effect. To the extent any term or condition of this Management Agreement Amendment not expressly amended hereby, is inconsistent with any term or condition of the Management Agreement,the former term or condition shall prevail. IN WITNESS WHEREOF, Owner and Manager have executed this Amendment on the j1 day of Neemlxl , 2003, and if this Amendment is executed in counterparts, each shall be deemed an original. CITY OF CARMEL, INDIANA("Owner") PARKSCAROF MEL-CLAY AND RECREATION ON ("Manager") By and through its Board of Public Works and Safety BY: e B inard, Presiding Officer Authorized Signature pp Date: '<>SQ ti G H. ni yen Presl el'ot. i �� Printed Name and Title tIVAI'LL Date: � 1 T Mary A$ ke,embe , Date: `rJ Lori Watson,Membe Date: I a i'7 03 ATTEST ATTEST: Dia L. Cordray, IAMCI, Clerk-Treasurer Sally Shapiro, Secretagi O-Phi, A. (-;'I"" STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) BEFORE ME, a Notary Public in and for said County and State, personally appeared James Brainard, Mary Ann Burke and Lori Watson,by me known to be the Members of the City of Carmel Board of Public Works and Safety, and Diana L. Sandra N bhnson, ?Qo��k €Er Cordray, Clerk-Treasurer of th&City of Carmel, Indiana,who acknowledged the execution of the foregoing"MANAGEMENT AGREEMENT AMENDMENT" on behalf of the City of Carmel, Indiana. WITNESS my hand and Notarial Seal this 11 day of l Ce-vm ape, 2003. e . axle) Notary Public My Commission Expires: C• Inn bcv\i(S Printed Name f f/i7 /08 My County of Residence`- -- STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) BEFORE ME, a Notary Public in and for said County and State, personally appeared S .2 SO.v .sA.L Fd• 11110, the ?resit&s ' of Carmel-Clay Board of Parks and Recreation("Manager"), who acknowledged the execution of the foregoing"MANAGEMENT AGREEMENT AMENDMENT" as his/her voluntary act and deed. WITNESS my hand and Notarial Seal this/'F day of Ala vsfrn4 y� 2003 . - l —(e — 1/417 Public c AY -row,)sH/P re-usreL ub i . My Commission Expires: e rI/ Age-Ad Printed Name s=/ec•F : Po:). c; My County of Residence: /tarn LTDt'- This instrument was jointly prepared by Douglas C.Haney, Carmel City Attorney,One Civic Square, Cannel,Indiana 46032 and Debra Grisham,Park Board Attorney, Smyth Hester&Grisham,LLP, 11550 North Meridian Street,Cannel,Indiana 46032. EXHIBIT A Page 1 of 2 LEGAL DESCRIPTION OF THE FISHERS PROPERTY Part of the Northwest Quarter Section 10, Township 17 North, Range 4 East in Hamilton County, Indiana, being more particularly described as follows: Beginning at a stone marking the Northwest corner of said Quarter Section; thence North 89 degrees 06 minutes 43 seconds East along the North line of said Quarter Section a distance of 395.37 feet to a point in the centerline of White River; thence meandering generally along said centerline South 54 degrees 49 minutes 16 seconds West a distance of 482.37 feet to a point on the West line of said Section; thence along said West line North 00 degrees 13 minutes 22 seconds West a distance of 271 .78 feet to the Beginning Point, containing 1.2 acres, more or less. EXHIBIT A Page2of2 DEPICTION OF THE FISHERS PROPERTY Gr FA q / / Gi'k 04 4 'RC,-�A / 's ;� I POINT OF BEGINNING /\Pad J / / y1� I SE CORNER SE 1/4 & c �p / /i 6? ` SEC 4-17N-4E v o `' / / NW CORNER NW 1/4 N m Z. a o .�\�/ g x y —SEC 10-17N-4E -< y o / 2 / `, G+`'� STONE FOUND DOWN/0.5 5 c 5 p V/ // 4 /x o I S8931'12"W (M) 61 a /x CAP"STAMPEDE IS89'54�59"W((D) m N89'31'12"E (M) x "SCHNEIDER ENG 106.50' (D) PIPPE NNE N89'06'43'E (D) MARKNE FIRM #0001" SET , 395.3T (D&M) `\ S01 MARKE• R' -.r=_ - `1- _ — N89'55150"W (M) (� ��y* ITH LINE SE 1/4 SEC 4-17N-4E 268.94' (M) zo hh WOVEN WIRE S89'54'49"W (D) &I 5 I PARCEL II �S FENCE IDES 268.74' (D) o TOWN OF FISHERS FROM 0.6' N TO --m z z INSTR #8906342" t*.' 2.1' N OF LINE CITY OF CARMEL v J W o 5 k�a R) 1 h INSTR #200100070412 °° N o 5/8" REBAR WITH CAP STAMPED Ern �\ CENTERLINE WHITE RIVER (PER DEED) "SCHNEIDER ENG FIRM #0001 FOUND I v'~ 12' N OF MEAN HIGH WATER MARK 5/8" REBAR WITH CAP STAMPED "WEIGHE ENG FIRM #0012" FOUND 0.9' N & 0.4' E OF SCHNEIDER —WEST LINE NW 1/4 SEC 10-17N-4E REBAR I PROJECT INFORMATION: LANDING pT(SIN G PARK �+"+i o I m HAZEL 1 �t� jJ Fp AT.`5 �V1 O a A'J .OZ o� - ALTA/ACSM LAND TITLE SURVEY 0o w m RETRACEMENT SURVEY CARMEL IN 46032 10601 HAZEL DELL PARKWAY, � Wo CLIENT INFORMATION: s CARMEL CLAY BOARD OF PARKS AND RECREATION 1055 THIRD AVENUE ST, CARMEL, IN 46032 EXHIBIT B ACCESS ROAD At pt / / )0'y C/*t Ag�`�J`y/ / ' / sO ` +�� POINT OF BEGINNING � Q�o) / ,` SE CORNER SE 1/4 vP�Vp��o /x NCO'+ SEC 4-17N-4E o�` vp�` / Y NW CORNER NW 1/4 co z v o /� / / o� x 1 ,,,,'' r SEC 10-17N-4E n' N o > o // / o xc ` ' \' STONE FOUND DOWN[0.5' a c rnm- / S89'31'12"W (M) cmn c, a x/ 5/8" REBAR WITH 15117' (M) rn / CAP STAMPED S89'54'59"W (D) Ngg'31'12"E (M) \ �PELINE x/ °SCHNEIDER ENG 106.50' (D) PIPELINE N89'06'43"E (D) X MARKER FIRM #0001 SET MARKER — /i _ • -- . , r, „k Vt _ l - 395.37' (D&M) so NO ITH LINE SE 1/4 SEC 4-17N-4E N89 55 50 W (M) o �� 268.94 (M) FENWOCE N ESE S89'54'49"W (D) o I TOWN OF FISHERS El ' PARCEL II \`Shy 268.74' D FROM0.6' NTO O 01 rn Z Z INSTR #8906342 rye` 2.1' N OF LINE 5 iv o 0 ,\0 CITY OF CARMEL v J w o SyLk9�� or INSTR #200100070412 N o Olt o �m 5/8" REBAR WITH CAP STAMPED I ¢° v € "SCHNEIDER ENG FIRM #0001° FOUND I _-________ CENTERLINE WHITE RIVER (PER DEED) 12' N OF MEAN HIGH WATER MARK 5/8" REBAR WITH CAP STAMPED "WEIGHE ENG ARM i0012° FOUND 0.9' N & 0.4' E OF SCHNEIDER `WEST LINE NW 1/4 SEC 10-•17N-4E REBAR I 2 y I1,,9 r 2T1 ° > PROJECT INFORMATION a 0 a PARK =lc) l HAZEL LANDING _, �`z" . w is u w ALTA/ACSM LAND TITLE SURVEY II . O w � m o RETRACEMENT SURVEY e CA "El 10601 HAZEL DELL PARKWAY, CARMEL, IN 4603E "" m �� CA CLIENT INFORMATION: o CARMEL CLAY BOARD OF PARKS AND RECREATION 1055 THIRD AVENUE St, CAR!®. IN 46032