HomeMy WebLinkAboutCC 03-07-22-01/Approves Build-Operate-Transfer Agreement with Envoy ConstructionSPONSORS: Councilors Worrell, Hannon
This Resolution was prepared by Jon A. Oberlander, Carmel Interim Corporation Counsel, on 02/23/22 at 11:30 p.m. No subsequent revision
to this Resolution has been reviewed by Mr. Oberlander for legal sufficiency or otherwise.
RESOLUTION NO. CC 03-07-22-01
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA,
APPROVING THE TERMS OF THE BUILD-OPERATE-TRANSFER AGREEMENT FOR THE
CARMEL POLICE HEADQUARTERS EXPANSION AND COURT ADDITION PROJECT
Synopsis: Approves the final terms of the Build-Operate-Transfer agreement with Envoy
Construction Services, LLC for the Carmel Police Headquarters Expansion and Court Addition
Project.
WHEREAS, pursuant to Indiana Code § 5-23-1-1 et seq. (the "BOT Statute"), the City of Carmel
("City") may solicit and enter into public-private agreements for the design, construction, operation, and
maintenance of public projects; and
WHEREAS, on February 1, 2021, the Carmel Comm on Council ("Council") approved Resolution
No. CC 02-01-21-01 authorizing the City to enter into public-private agreements pursuant to the BOT
Statute; and
WHEREAS, on March 17, 2021, the Council adopted Ordinance D-2562-20, as amended, which
approved bonds in an amount not to exceed $38,000,000 to finance an expansion of the existing police
headquarters and relocation of the IT facilities, along with a related financing lease with the Carmel
Municipal Facilities Building Corporation; and
WHEREAS, D-2562-20 requires the City to use the Build-Operate-Transfer (“BOT”)
construction procurement method for the Carmel Police Headquarters Expansion and Court Addition
Project (“BOT Project”); and
WHEREAS, D-2562-20 also requires Council approval of the final terms of the BOT Project
agreement; and
WHEREAS, on April 23, 2021, the City issued a Request for Proposals and Qualifications to
Design, Build, Operate and Maintain the BOT Project through a Public Private Agreement ("BOT
RFP/Q"), after publishing the statutorily required public notice, for the design, construction, operation,
and maintenance of the BOT Project; and
WHEREAS, after reviewing all responses to the BOT RFP/Q, the City BOT evaluation
committee recommended Envoy Construction Services, LLC (“Envoy”) to act as the developer of the
BOT Project; and
WHEREAS, on July 7, 2021, the Carmel Board of Public Works and Safety, during the statutorily
required public hearing, passed Resolution No. BP W 07-07-21-01, which selected Envoy as the preferred
offeror and the private partner for the development of the BOT Project; and
WHEREAS, it is in the best interests of the City to approve the final terms of the BOT Project
agreement with Envoy.
Resolution CC 03-07-22-01
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SPONSORS: Councilors Worrell, Hannon
This Resolution was prepared by Jon A. Oberlander, Carmel Interim Corporation Counsel, on 02/23/22 at 11:30 p.m. No subsequent revision
to this Resolution has been reviewed by Mr. Oberlander for legal sufficiency or otherwise.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Carmel,
Indiana, that:
Section 1. The foregoing Recitals are incorporated herein by this reference.
Section 2. The Common Council of the City of Carmel, Indiana hereby approves the terms as
materially set forth in the Public Private Agreement with Envoy Construction Services, LLC for the
Carmel Police Headquarters Expansion and Court Addition Project, which is attached hereto as Exhibit A
and incorporated herein by this reference. The City shall have the ability to further negotiate and amend
terms, so long as such negotiation or amendment does not increase the amount of the project’s guaranteed
maximum price.
Section 3. The Council encourages the Board of Public Works and Safety to approve and execute
the Agreement at its earliest convenience.
[signature page follows]
Resolution CC 03-07-22-01
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SPONSORS: Councilors Worrell, Hannon
This Resolution was prepared by Jon A. Oberlander, Carmel Interim Corporation Counsel, on 02/23/22 at 11:30 p.m. No subsequent revision
to this Resolution has been reviewed by Mr. Oberlander for legal sufficiency or otherwise.
SO RESOLVED, by the Common Council of the City of Carmel, Indiana, this ____ day of
________, 2022, by a vote of _____ ayes and _____ nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
___________________________________
Kevin D. Rider, President Jeff Worrell, Vice-President
___________________________________ ____________________________________
Sue Finkam Laura Campbell
___________________________________ ____________________________________
H. Bruce Kimball Anthony Green
___________________________________ ___________________________________
Adam Aasen Tim Hannon
___________________________________
Miles Nelson
ATTEST:
__________________________________
Sue Wolfgang, Clerk
Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of
_________________________ 2022, at _______ __.M.
____________________________________
Sue Wolfgang, Clerk
Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of
________________________ 2022, at _______ __.M.
____________________________________
James Brainard, Mayor
ATTEST:
___________________________________
Sue Wolfgang, Clerk
Resolution CC 03-07-22-01
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7th
8March 0
11:45
A10:45
8th
8th
A
Not Present
March
March
PUBLIC PRIVATE AGREEMENT
(CARMEL POLICE STATION AND CITY COURT BOT)
This Public Private Agreement (Carmel Police Station and City Court BOT) (the "Agreement") is
executed this ___ day of March, 2022 (the “Effective Date”), by and between Envoy Construction Services,
LLC, an Indiana limited liability company (the “Developer”), and the City of Carmel, Indiana (the "City").
Recitals
WHEREAS, the Common Council of the City (the “Council”) adopted Resolution Number CC 02-
01-21-01 on February 1, 2021, permitting the City to procure projects via Indiana Code 5-23 et seq. (the
“Act”);
WHEREAS, the Act grants the City the authority to enter into agreements with private entities for
the planning, design, development, reconstruction, or repair of any public facility;
WHEREAS, pursuant to the Act, the City issued a Request for Proposals and Qualifications on
April 23, 2021 (the “RFPQ”);
WHEREAS, on May 19, 2021, the City received four responses to the RFPQ, including the
response of the Developer;
WHEREAS, after conducting a thorough analysis of all responses to the RFPQ, the City’s
evaluation committee (the “Committee”) determined that the Developer’s proposal met the selection criteria
set forth in the RFPQ and recommended to the City and the Board of Public Works and Safety (the “Board”)
that a public private agreement be awarded to Developer;
WHEREAS, as required by the Act, after receiving the recommendation of the Committee and after
publishing notice on June 29, 2021, the Board held a public hearing on July 7, 2021, at which it accepted
the recommendation of the Board and determined that the Developer should be designated as the preferred
offeror for the final negotiation and execution of this Agreement;
WHEREAS, on March 7, 2022, the Council adopted Resolution Number CC-03-07-xx; approving
the final negotiation and execution of this Agreement with the Developer;
WHEREAS, this Agreement, along with any Ancillary Agreements (as hereinafter defined),
collectively constitute a public-private agreement as contemplated under the Act, and is hereby entered
into in accordance with the Act and the provisions of the RFPQ;
WHEREAS, the City and the Developer desire to enter into this Agreement to formalize the terms
and conditions upon which the Project shall be delivered.
Agreement
1. Defined Terms.
Ancillary Agreements shall mean the Development Easement.
Assessments shall mean all general and special governmental and utility assessments levied on, against,
or with respect to the Project Site.
Available Funds shall mean: (a) the undisbursed proceeds of the Bond Proceeds; plus (b) any other
amounts deposited or held by Developer for the Project.
BIM shall mean Building Information Modeling.
Resolution CC 03-07-22-01
EXHIBIT A
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Bond Proceeds shall mean the proceeds of the $32,380,000 Carmel Municipal Facilities Building
Corporation Lease Rental Revenue Bonds Series 2021, issued by the City on August 1, 2021, of which a
maximum amount of $25,388,670 is available for disbursement to the Developer for the Project under this
Agreement.
Bonds shall mean surety bonds provided on behalf of Developer for the construction of the Project,
specifically: (a) a performance bond in the amount of 50% of the portion of the Project Budget for the design
and construction of the Project; and (b) payment bond for 100% of the Project Budget; including any
contingency, consulting, construction management, and/or developer fees. The Bonds shall be effective
within 30 days of the Notice to Proceed.
Books and Records shall mean all of the books and records pertaining to: (a) the acquisition of materials
to construct, and the construction of, the Project in accordance with this Agreement and the Construction
Contract; and (b) the operating of the completed Project during the Operating Period.
Change Order shall mean a change order executed by Developer and City finalizing the inclusion into the
Final Plans of a change proposed in a Change Order Request, which change has been approved; provided
that, in the case of a Permitted Change, such change order shall be effective if executed only by Developer.
Change Order Request shall mean a written request for a change to the Final Plans.
City Approvals shall mean the approvals required by the City of Carmel, Indiana, its agencies, or its
departments related to the design and construction of the Project, including but not limited to zoning
approvals.
Claims shall mean claims, judgments, damages, liabilities, injuries, losses, costs, and expenses (including,
without limitation, attorneys' fees).
Closing shall mean the date on which the Developer: (a) executes the Ancillary Documents; and (b) the
Bond Proceeds are available for disbursement pursuant to this Agreement and the Trust Indenture. At the
Closing, the Developer and City execute the Closing Documents.
Closing Date shall mean the date of the Closing.
Closing Documents shall mean the documents described in Section 6.
Commissioning shall mean the process by the City and its Commissioning Agent shall have the
opportunity to inspect, test, and operate the Project and its systems.
Commissioning Agent shall mean the company or person selected by City to assist it in performing the
Commissioning.
Construction Commencement shall mean the date construction commences on the Project.
Construction Commencement Notice shall mean the written notice of Construction Commencement
provided by Developer to City.
Construction Contract shall mean the contract executed by and between Developer (or Developer’s
assignee under Section 19 of this Agreement) and General Contractor for construction of the Project in
accordance with the Final Plans, the approved Project Budget, and the terms and conditions of this
Agreement.
Construction Drawings shall mean construction drawings consistent with the Design Development
Documents and the Laws.
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Construction Manager shall mean an employee of the Developer, its affiliate, or the General Contractor
that shall fulfill the requirements of Section 4(b).
Construction Schedule shall mean a reasonably detailed schedule for construction of the Project, which
shall cause the Project to be completed no later than ____________________, as identified and further
outlined in the GMP Report.
Construction Trade shall mean any trade or other discrete aspect of construction of the Project.
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition
of this Agreement to be performed or observed by it receives notice specifying the nature of the failure;
provided that, if the failure is of such a nature that it cannot be remedied within 30 days, despite the exercise
of reasonably diligent efforts, then the 30-day period shall be extended as reasonably may be necessary
for the defaulting party to remedy the failure, so long as the defaulting party: (a) commences to remedy the
failure within the 30-day period; and (b) diligently pursues such remedy to completion.
Design Development Documents shall mean reasonably detailed design development drawings that are
consistent with the Schematic Design Drawings and the Laws.
Development Easement shall mean the access and construction easement granted by City in favor of
Developer for the purpose of constructing the Project.
Development Work shall mean the work to be performed by Developer in accordance with the terms of
this Agreement.
Disbursement Request shall mean a written request by Developer for a disbursement of Bond Proceeds,
which request shall: (a) specify the total amount of Bond Proceeds being requested; (b) include invoices to
be paid (or amounts to be reimbursed to Developer) with the disbursed funds; and (c) include such
supporting documentation as would be required for Developer to obtain a disbursement of construction loan
proceeds (other than any supporting documentation: (i) specific to investment of Developer equity; or (ii)
related to updating any policy of title insurance).
Documentation Costs shall mean all fees, costs, and expenses incurred by Developer in connection with
drafting and negotiating: (a) this Agreement; and (b) any other documents contemplated by this Agreement
to be executed in connection with the Project.
Encumbrances shall mean any Liens, leases, mortgages, security interests, charges, judgments, judicial
awards, attachment or encumbrance of any kind with respect to the Project.
Event of Default shall have the meaning set forth in Subsection 17(a).
E-Verify Program shall mean: (a) the program currently operated by the U.S. Department of Homeland
Security that electronically confirms an individual’s eligibility to work in the United States, authority for which
is found in Title IV, Subtitle A, of the Illegal Immigration Reform and Immigration Responsibility Act of 1996,
P.L. 104-208, 110 Stat. 3009 (USC §1324a), as amended; or (b) any successor work authorization program
designated by the U.S. Department of Homeland Security or such other federal agency as may be
authorized to verify the work authorization status of newly-hired employees. The E-Verify Program is the
“E-Verify Program” defined in Indiana Code § 22-5-1.7-3.
FF&E shall mean the fixtures, furniture, and equipment necessary to complete the construction, occupation,
and use of the Project, all as further described on the FF&E Plan.
FF&E Plan shall mean the plan for the FF&E to be procured, paid for, and installed within the Project by
Developer.
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Final Documents and Drawings shall mean final Schematic Design Drawings, final Design Development
Documents, final Construction Drawings, final IT Plan, final FF&E Plan, Final Relocation Plan, and the final
Construction Schedule, as each is finalized and approved or reviewed by City pursuant to Section 9.
Final Observation shall mean an observation of the Project by City after substantial completion thereof.
Final Plans shall mean the aggregated Final Documents and Drawings.
Final Project Budget shall mean $25,388,670, as identified and outlined in the GMP Report.
Force Majeure shall mean, with respect to a party: (a) an act or omission of the other party; or (b) any other
cause that is not within the reasonable control of such party (including, without limitation: (i) unusually
inclement weather; (ii) the unusual unavailability of materials, equipment, services or labor; and (iii) utility
or energy shortages or acts or omissions of public utility provider.
General Contractor shall mean ___________________.
GMP Report shall mean the Carmel Police Station – Renovation and Addition GMP Report dated as of
______, 2022, which has been accepted by the City and which report is incorporated herein by reference
and attached as Exhibit H.
In Balance shall mean that the total of Available Funds, as presented by Developer to City at City’s request,
shall equal or exceed (without duplication) the aggregate of: (a) the amount required to be paid as retainage
to persons who have supplied labor, services, or materials to the Project, including without limitation, the
General Contractor, architects and/or design professionals, and all subcontractors; (b) the amount required
for any additional contingencies; and (c) the amount necessary to pay for all unpaid Project Costs incurred
or to be incurred in the completion of the construction of the Project.
Instruments of Service shall mean representations, in any medium of expression now known or later
developed, of the tangible and intangible creative worked performed by Developer or its subcontractors,
including, but not limited to studies, surveys, models, sketches, drawings, specifications, digital models,
and other similar materials.
IT Infrastructure shall mean the conduit, cables, equipment, switches, routers, and other
telecommunications infrastructure necessary to complete the construction and occupancy of the Final Plans
consistent with the Construction Drawings.
IT Plan shall mean the plan for the procurement, installation, and set-up of the IT Infrastructure within the
Project by Developer.
Latent Defect shall mean those material defects in the construction of the Project that: (a) are not
discovered; and (b) reasonably are not discoverable; by City during a Permitted Inspection or the Final
Inspection.
Laws shall mean all applicable: (a) laws, statutes, and/or ordinances; (b) governmental rules, regulations,
and/or guidelines; and (c) judicial orders, consents, and/or decrees.
Lien shall mean any and every lien against the Project or against any monies due or to become due from
the City to Developer under this Agreement, for or on account of the Development Work, including but not
limited to: (a) mechanics’ liens; (b) materialmens’ liens; (c) laborers’ liens; (d) architect’s liens; (e) engineer’s
liens; (f) land surveyor’s liens; and/or (g) lenders’ liens.
Material Defect shall mean any item or component of the Project that: (a) contains a material defect in
workmanship or materials; (b) deviates materially from the Final Plans; or (c) has not been constructed
materially in accordance with the terms and conditions of this Agreement.
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Non-Compliance Notice shall mean a written notice from City that identifies Material Defects with respect
to the Project discovered by City during a Permitted Inspection or the Final Inspection.
Nonconforming Work means Development Work which is not conforming to the terms of this Agreement
or the Final Plans and for which City gives notice to Developer and an opportunity to cure in accordance
with Section 11(b)(v) hereof. Damage or defect to the Development Work caused after the Transfer by
abuse, alterations to the Project not performed by Developer or its subcontractors and/or vendors, improper
or insufficient maintenance, improper operation, or normal wear and tear or normal usage that directly and
materially contributes to such nonconformity shall not constitute Nonconforming Work.
Notice to Proceed shall mean the written notice form the City to the Developer in accordance with Section
9(g).
Observation shall mean a Permitted Observation or the Final Observation, as applicable.
Operating Period shall mean the period: (a) commencing on the Substantial Completion Date; and (b)
ending on the earlier of the date: (i) that is 30 days after the Substantial Completion Date; or (b) that is
specified in a written notice delivered by City to Developer; unless the City and Developer agree to a longer
operating period by executing a separate operating agreement.
Owner’s Representative shall mean a person or persons designated by City in writing to observe
performance of the Development Work. Owner’s Representative shall have the authority to act for and on
behalf of City on all decisions required by City under this Contract. The initial Owner’s Representative shall
be Jim Crider.
Permitted Change shall mean any change proposed by Developer to the Final Plans of the Project, so
long as such change: (a) is not inconsistent with the Schematic Design Drawings or Design Development
Documents approved by City for the Project; (b) does not result in the Final Plans containing structurally
flawed elements; (c) is in conformity with the Laws; (d) does not reduce the quality or the finish level of the
Project; and (e) does not make it unlikely, impracticable, or impossible for Developer to complete the
Project, or any component thereof, by the applicable date set forth in the approved Construction Schedule
for the Project.
Permitted Encumbrances shall mean, from time to time, any one or more of the following: (a) utility
charges, taxes, rates, and assessments not yet delinquent or otherwise appealed; (b) any encumbrance
arising out any judgment rendered which is being contested diligently and in good faith by Developer; (c)
any encumbrance arising in the ordinary course of business imposed by law dealing with Liens, the validity
of which is being contested diligently and in good faith by Developer and against which Developer has
established appropriate reserves; (d) licenses, easements, encumbrances, restricts, or other rights-of-way
which shall not in the aggregate materially and adversely impair the construction of the Project; (e)
applicable zoning and building bylaws and ordinances, municipal bylaws and regulations, and restrictive
covenants, which do not materially interfere with the construction of the Project; (f) encumbrances created
on or before the Effective Date; (g) encumbrances created by a change in law on or after the Effective Date;
and (h) any encumbrance created by an act or omission of any governmental entity or with respect to which
the City has given its consent.
Permitted Observation shall mean an observation by City of any item or component of the Project when
reasonably deemed to be necessary or appropriate by City.
Plan Refinement Process shall mean the process set forth in Section 9 for completion of the Final Plans
and the Project Budget.
Plan Schedule shall mean the schedule in accordance with which Developer shall prepare and provide to
City the IT Plan, the FF&E Plan, and the Construction Schedule, which schedule is attached hereto as
Exhibit B.
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Project shall mean the: (a) renovation of the existing City police department facility; and (b) construction of
an addition to the existing City police department facility to house additional police department and City
court space; to be constructed on the Project Site and as further described in the Reference Information
Documents.
Project Approvals shall mean the approvals required by City, its agencies, or its departments related to
the design and construction of the Project, including but not limited to plan commission approvals.
Project Budget shall mean the budget for the Project Costs, as further described on Exhibit E.
Project Costs shall mean the fees, costs, and expenses to be incurred in connection with the Project,
including but not limited to: (a) the Documentation Costs; (b) the costs incurred in connection with
determining that all of the conditions set forth in Section 7 have been satisfied and/or will be waived by
Developer and/or City; (c) the costs incurred in connection with the Closing (to the extent that such costs
are not included in the Documentation Costs); (e) the cost to develop, design, and construct the Project in
accordance with the terms and conditions of this Agreement; (f) contingencies in the amount approved
within the Project Budget; (g) the developer fee in the amount approved within the Project budget; (h) a
construction management fee in the amount approved within the Project Budget; and (i) any other
obligations set forth in the Reference Information Documents.
Project Documents shall mean the: (a) Instruments of Service; and (b) BIM.
Project Site shall mean the real estate commonly known as 3 Civic Square and 998 South Rangeline Road
in Carmel, Indiana, as further described on Exhibit A.
Project Purchase Price shall mean the Project Costs; provided that, the Project Purchase Price shall not
exceed $25,388,670 unless otherwise approved by City pursuant to Section 9(g).
Real Estate Taxes shall mean all real estate taxes that may be attached to a property tax bill in the same
manner as real estate taxes, levied on, against, or with respect to the Project Site and/or the Project.
Reference Information Documents shall mean the collection of information, data, documents, and other
materials that City has made available to Developer in connection with the Project for general or reference
information only and without any warranty as to their accuracy, completeness, or fitness for any particular
purpose, including but not limited to the: (a) Request for Proposals and Qualifications, including all
subsequent addenda and communications (the “RFPQ”); and (b) Developer’s submission, including all
amendments thereto, to the RFPQ .
Relocation Plan shall mean the plan for the coordination, communication, physical moving, storage, and
other actions taken by Developer that are necessary to move various users and occupants of the Project
throughout its space while the renovation and new construction is completed.
Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for the
construction of the Project.
Sales Tax Exemption Form shall mean Indiana Department of Revenue Form ST-105 (General Sales Tax
Exemption Certificate), pursuant to which City shall represent that the acquisition of the materials to
construct the Project is exempt from Indiana sales and use tax.
Schematic Design Drawings shall mean detailed schematic design drawings that are consistent with the
Laws.
Site Information shall mean, with respect to the Project Site, copies of all reports and results of surveys,
soil water and engineering tests, and other tests, inspections, examinations, studies, and investigations
(including, without limitation, any existing Phase I Environmental Assessment and any other environmental
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reports) conducted by or for, or in the possession of, Developer as a result of Developer’s performance of
any due diligence on the Project Site.
Substantial Completion Date shall mean the date on which: (a) Developer delivers to City a copy of the
certificate of substantial completion of the Project architect which indicates that the Project has been
completed substantially in accordance with the Final Plans, subject to "punch-list" items to be identified in
connection with the Final Inspection, which “punch-list” items do not materially affect the use of the Project
for its intended use; and (b) Developer delivers to City a copy of the certificate of occupancy issued by the
City of Carmel.
Transfer shall mean the conveyance of the Project by Developer to City in a form acceptable to City that
transfers all Developer’s rights in Project to City or its designee free of all Liens and/or Encumbrances at:
(a) the expiration of the Operating Period; or (b) upon termination of this Agreement in accordance with the
terms and conditions of Section 21.
Trust Indenture shall mean that certain Trust Indenture executed by and between the Carmel Municipal
Facilities Building Corporation and Trustee dated August 1, 2021.
Trustee shall mean BOKF, N.A., as “Trustee” under the Trust Indenture.
Unauthorized Alien shall have the meaning set forth in 8 U.S.C § 1324a(h)(3).
Utility Services shall mean gas, electricity, telephone, water, storm and sanitary sewer, fiber and/or
internet access, and other utility services.
2. General Obligations.
(a) Developer. Subject to the terms and conditions of this Agreement, Developer shall: (i)
enter into the Ancillary Documents; (ii) perform the Development Work; (iii) design the Project; (iv)
construct the Project on the Project Site; (v) operate the Project until the expiration of the Operating
Period; (vi) upon the expiration of the Operating Period, execute the Transfer; and (vii) upon the
Transfer, provide City with ownership and control over the Project Documents.
(b) City. Subject to the terms and conditions of this Agreement, City shall: (i) enter into the
Ancillary Agreements; (ii) take such action as necessary or reasonably appropriate to provide for
the City Approvals; (iii) upon Closing, obtain and make available the Bond Proceeds; and (iv) upon
the end of the Operating Period, execute the Transfer.
(c) Cost of Performance. All obligations undertaken by each party shall be performed at the
cost of the party undertaking the obligation or responsibility, unless the other party has explicitly
agreed herein to bear all or a portion of the cost either directly, by reimbursement to the other party,
or through a Change Order.
(d) Utility Availability. City, at its cost and expense, shall ensure that there are Utility Services
in adjoining public rights-of-way or properly granted and recorded utility easements that serve the
Project Site at adequate pressures, and in sufficient quantities and volumes, for the construction
and use of the Project in accordance with the terms and conditions of this Agreement, including,
without limitation, that City, at its cost and expense, shall make any improvements outside the
Project Site that are necessary for City to satisfy the foregoing obligation with respect to Utility
Services. Developer shall notify City of any deficiency in the Utility Services serving any Project
Site prior to providing the Final Project Budget.
(e) Required Permit and Project Approvals Fees. City shall, where possible to reduce the
potential fee assessed, complete an application as the “Owner” of the Project for the Required
Permits, the City Approvals, and/or Project Approvals. The parties acknowledge that the Project
Site is located in the permitting jurisdiction of the City.
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(f) Project In Balance. Notwithstanding anything to the contrary contained in this Agreement,
it is expressly understood and agreed that the Project at all times shall be In Balance relative to the
Final Budget and Available Funds only (i.e., not with regard to the total amount of Bond Proceeds,
a portion of which may be used by the City for other projects). Developer agrees that if for any
reason the Project is not In Balance, Developer shall immediately make available, upon request of
City, cash or other funds in an amount that will place the Project In Balance, which funds shall
remain available for the Project until the substantial completion thereof.
3. Term. This Agreement shall be effective as of the Effective Date and shall continue until the earlier
to occur of: (a) termination of this Agreement by either party pursuant to its terms and conditions; or (b) the
Transfer.
4. Development Work.
(a) Staffing Requirements. All persons engaged by Developer for Development Work shall
have requisite skills for the tasks assigned. Developer shall employ or engage and compensate
design professionals and other consultants to perform all architectural engineering and other
services required for the Development Work. All firms and personnel performing Development
Work, including the design professionals, General Contractor, subcontractor firms, and other
personnel, shall meet the licensing and certification requirements imposed by applicable Laws.
(b) Construction Manager. Developer shall designate a Construction Manager, who shall be
present on the Project Site when the Developer is performing the Development Work as necessary
to ensure the complete and accurate development of the Project. The Construction Manager shall,
among other things, attend all meetings with the City relative to the development of the Project.
(c) Compliance with Laws.
(i) Compliance Obligations. Developer shall perform the Development Work
in compliance with all applicable Laws and shall cause the General Contractor and
its subcontractors to comply with the Laws.
(ii) Governmental Approvals. Developer shall make all filings, applications,
and reports necessary to be made to obtain and maintain all governmental
approvals required for the performance of the Development Work (except for those
governmental approvals that are the responsibility of the City as specified herein)
and shall comply with the terms of such governmental approvals.
(iii) Registration, Licensing, and Certification Requirements. Developer shall
ensure that all persons performing the Development Work, including the General
Contractor and all subcontractors, comply with all registration, licensing, and
certification requirements imposed by the Laws.
(d) Right of Entry. On or after the Effective Date and pursuant to the terms of the Development
Easaement, Developer and its authorized subcontractors shall have the right and a non-exclusive
license to enter on the respective Project Site, and other lands as may be specified in writing by
the City and that are owned by or in possession and control of the City or subject to a right of entry
or access in favor of the City, for the purpose of carrying out Developer’s obligations under this
Agreement. The Development Easement may be subject to interim limits on activities as directed
by the City. Absent agreement by the parties to a later date, the Development Easement shall
automatically terminate at the end of the Term.
(e) Developer Control of Development Work; No City Responsibility. Developer shall have
total control of the Development Work and shall effectively direct and supervise the Developer Work
so that it is undertaken in compliance with the terms of this Agreement. Developer shall have the
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sole and exclusive responsibility and liability for the design, construction, and performance of the
Project during the Term. Nothing in this Agreement shall be interpreted as giving any responsibility
for the Development Work to the City or its advisors. The City may, at its cost, retain an Owner’s
Representative or advisors prior to and during the period of the Development Work to consult with
and advise the City, but the City’s advisors shall have no authority to render decisions for or
otherwise bind the City. City may, via written notice to Developer, delegate its decision-making
authority to its Owner’s Representative. City may share with its advisors all information which the
City receives and/or develops with respect to the Project and the City’s advisors may, at the request
or direction of the City, attend all meetings related to the development, design, and construction of
the Project to which the City has the right to be present. City’s advisors shall be retained solely for
the benefit of the City and the City’s advisors do not owe any duty or responsibility to the Developer.
The City’s decision to retain advisors shall in no manner change, affect, limit, or otherwise diminish
the duties and responsibilities of the Developer as established in this Agreement.
(f) Materials, Labor, and Services. Developer shall furnish all necessary architectural, design,
and engineering services, labor, materials equipment, supplies, tools, scaffolding, transportation,
utilities, insurance, temporary facilities and utilities, completed structures, assemblies, fabrications,
acquisitions installations, testing, and things and services of every kind whatsoever necessary for
the full performance and completion of the Developer’s design, engineering, construction, and
commissioning of the Project during the Term. The materials, machinery, structures,
improvements, and equipment to be furnished as part of the Development Work shall be new, of
recent manufacture, and of good quality.
(g) Standards of Workmanship and Materials. Where this Agreement does not specify any
explicitly quality or standard for construction material or workmanship, the Developer shall use only
workmanship and new materials of a quality consistent with that of construction workmanship and
those methods, means, techniques, standards, and practices, which, at the time they are to be
employed and in light of the circumstances known or reasonably believed to exist at such time, are
generally recognized and accepted as good practice in the delivery of public or institutional facilities
serving purposes similar to the Project.
(h) Quality Assurance and Quality Control. The Developer shall have the full responsibility for
quality assurance quality control of the Development Work.
(i) Laydown Areas. Laydown and staging areas for construction materials shall be as
approved in the GMP Report. Developer shall bear all responsibility for arranging and, if necessary,
paying for the laydown and staging area indicated in the GMP Report. If required, Developer shall
also provide construction office space at its own cost and expense. If at any time during the
Developer’s work on the Project Site the City should require that Developer’s laydown and staging
areas be relocated, City shall bear all responsibility for arranging and, if necessary, paying for the
new laydown and staging area and the relocation of materials thereto.
(j) Maintenance and Security of the Project Site. During performance of the Development
Work, the Developer shall be responsible for the overall maintenance and security of the Project
Site. The Developer shall keep the Project Site neat and orderly at all times, and shall clean up
and remove all rubbish and construction debris from the Project Site as they accumulate.
(k) Title and Risk of Loss. Title to the structures, improvements, fixtures, machinery,
equipment and materials constituting the Project shall pass to the City upon incorporation into the
Project, free and clear of all Liens as provided in this Agreement. The Developer shall bear all risk
of loss concerning the Development Work during the term of the Development Work, regardless of
the extent to which the loss was insured or the availability of insurance proceeds.
(l) Encumbrances. The Developer shall not directly or indirectly, without the City’s consent,
crate or permit to be created or to remain, and shall promptly discharge or bond over any
Encumbrance arising on the Project, the Project Site, or the Development Work, other than the
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Permitted Encumbrances, arising out of the Developer’s construction of the Project. To the extent
permitted by the Laws, the Developer waives any right or claim to any Lien or Encumbrance upon
the Project or the Project Site that may exist under the Laws or in equity for failure of the City to
pay amounts due to the Developer.
(m) BIM. If requested by City, Developer shall use BIM for the Project, or portions thereof, as
mutually agreed by the parties. City and Developer shall agree on the appropriate protocols and
terms and conditions applicable to the use of BIM on the Project. City shall work collaboratively
with Developer to provide existing data and information, if any, required to integrate existing
facilities into the BIM model. Upon transfer of ownership of the BIM to the City, Developer shall
have full access to and right to use the BIM, until such time as City and Developer may mutually
agree otherwise.
(n) Information Technology Work. Consistent with the approved IT Plan, Developer shall be
responsible for the installation of all IT Infrastructure necessary to construct and equip the Project.
(o) FF&E. Consistent with the approved FF&E Plan, Developer shall be responsible for the
procurement and installation of the FF&E.
(p) Relocation. Consistent with the approved Relocation Plan, Developer shall be responsible
for the relocation of users and all FF&E within the Project during the renovation of existing spaces
and construction of new spaces, including but not limited to coordination of such move(s) in
collaboration with the City users, physical relocation of all FF&E within such space, and storage of
such FF&E, if required. The Relocation Plan shall take best efforts to ensure that such relocation
has the least disruptive impact on City operations as possible and shall at no point leave City
without the ability to operate within the Project.
(r) Commissioning. During the period between substantial completion of the Project and the
Transfer, Developer shall: (a) coordinate the Commissioning of the Project with City and its
Commissioning Agent; (b) provide all relevant documents, including any results of any
Commissioning Tests; and (c) promptly address all issues identified by City and its Commissioning
Agent during such process.
5. Closing. Subject to the terms and conditions of this Agreement, the Closing shall occur on or
before April 15, 2022. The Closing Date shall be established mutually by Developer and City, and the
Closing shall take place at such location as Developer and City mutually agree. At Closing, the Bond
Proceeds (less any amount thereof to be disbursed at Closing) shall be available for disbursement in
accordance with the terms and conditions of this Agreement and the Trust Indenture.
6. Closing Documents. At the Closing, the documents and instruments set forth in this Section shall
be executed and/or delivered, including:
(a) the Ancillary Agreements;
(b) a confirmation by each of Developer and City of the applicable representations and
warranties set forth in Section 8;
(c) an affidavit affirming that Developer: (i) is enrolled in the E-Verify Program; (ii) is
participating in the E-Verify Program; and (iii) does not knowingly employ, or contract with, any
Unauthorized Aliens;
(d) copies of such resolutions, consents, authorizations, and other evidence as either party
reasonably may request to establish that: (i) the persons executing and delivering the foregoing
documents have been empowered and authorized by all necessary action of Developer or City, as
the case may be; and (ii) the execution and delivery of such documents, and the performance by
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Developer or City of its obligations hereunder and under the foregoing documents, have been
authorized by Developer or City, as the case may be; and
(e) such other customary documents and instruments as either party reasonably may request
in connection with the Closing.
7. Conditions.
(a) Mutual. Except to the extent waived by proceeding to the Closing, the obligation of each
of Developer and City to proceed to the Closing is subject to the satisfaction, as of the Closing
Date, of the conditions set forth in this Subsection.
(i) City and Developer have agreed on the form and substance of the Closing
Documents.
(ii) Developer has obtained, or Developer and City are satisfied that
Developer will be able to obtain, all Required Permits, Project Approvals, and City
Approvals.
(ii) Developer shall have submitted to City, and City shall have approved, the
GMP Report and related materials.
(iii) City has obtained all necessary approvals for, and has determined that it
will be able to sell any instruments required for, the availability of the Bond
Proceeds, including, but not limited to, Council approval.
(iv) Developer is enrolled in the E-Verify Program.
(b) Developer. In addition to the conditions set forth in Subsection 7(a), the obligation of
Developer to proceed to the Closing is subject to the satisfaction, as of the Closing Date, of the
conditions set forth in this Subsection.
(i) Developer has determined that no test, inspection, examination, study,
investigation, or title search of or with respect to the Project Site establishes that
there are conditions that would interfere with, or prohibit, the construction of the
Project, including but not limited to environmental or geotechnical conditions, in
accordance with the terms and conditions of this Agreement.
(ii) There is no continuing breach by City of this Agreement, and all of the
representations and warranties of City set forth in Section 8 are true and accurate
in all respects.
(c) City. In addition to the conditions set forth in Subsection 7(a), and except to the extent
waived by City prior to the Closing, the obligation of City to proceed to the Closing is subject to the
satisfaction, as of the Closing Date, of the conditions set forth in this Subsection.
(i) There is no continuing breach by Developer of this Agreement.
(ii) All of the representations and warranties of Developer set forth in Section
8 are true and accurate in all respects.
(d) Condition Failure. If one or more of the conditions set forth in this Section is not, or cannot
be, timely and completely satisfied, then, as its sole and exclusive remedy, the applicable party
either may elect to: (a) waive satisfaction of the conditions and proceed to Closing; or (b) terminate
this Agreement by a written notice to the other party; provided that, with respect to breaches of this
Agreement by a party, the other party shall have the rights and remedies set forth in Section 12.
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Notwithstanding anything to the contrary set forth herein, Developer and City shall work diligently
and in good faith to satisfy the conditions set forth in this Section.
8. Representations and Warranties.
(a) City. City represents and warrants that: (i) it is a public body organized and existing under
the laws of the State of Indiana; (ii) it shall not enter into any contracts or undertakings that would
limit, conflict with, or constitute a breach of this Agreement; (iii) it has the power to enter into this
Agreement and to perform its obligations hereunder; (iv) it has been authorized by proper action to
execute and deliver this Agreement, and to perform its obligations hereunder; and (v) this
Agreement, once executed, is its legal, valid, and binding obligation.
(b) Developer. Developer represents and warrants that: (i) it is a limited liability company
organized and existing under the laws of the State of Indiana; (ii) it shall not enter into any contracts
or undertakings that would limit, conflict with, or constitute a breach of this Agreement; (iii) it has
the power to enter into this Agreement and to perform its obligations hereunder; (iv) it has been
authorized by proper action to execute and deliver this Agreement, and to perform its obligations
hereunder; (v) this Agreement, once executed, is its legal, valid, and binding obligation; (vi) there
is no legal proceeding in process, pending, or overtly threatened or publicly announced, that could
reasonably be expected to have a material and adverse effect on the execution and delivery of this
Agreement; (vii) the Developer has carefully reviewed the whole of this Agreement and all Laws
and as taken all steps it considers reasonably necessary to satisfy itself that nothing contained
herein inhibits or prevents the Developer from developing the Project in accordance with this
Agreement; (viii) it is in compliance in all material respects with the Laws applicable to Developer’s
business and services.
(c) Continuing Accuracy of Developer Representations. During the Term, the Developer shall
not take any action, or omit to perform any act, that results in a representation and warranty made
in this Section 8 becoming untrue. Developer shall promptly notify the City if any such
representation and warranty becomes untrue.
9. Plan Refinement Process.
(a) Design Considerations. The design of the Project undertaken and performed by the
Developer shall be undertaken by a design team exercising such degree of care, skill, and diligence
as would reasonably be expected from consultants qualified to perform services similar in scope,
nature, and complexity to the design, as of the date of this Agreement.
(b) Approvals. Developer, at its cost and expense, has submitted to City for its approval, and
City has approved, the Schematic Design Drawings, the Design Development Documents, the
Construction Schedule, and the GMP Report. The Schematic Design Drawings, Design
Development Documents, Construction Schedule, and GMP Report, respectively, shall be final,
subject to modifications by Change Orders.
(c) Construction Drawings. Developer, at its cost and expense, has submitted to City for its
review and approval the Construction Drawings with respect to each Construction Trade, which
Construction Drawings have been approved by City. The Construction Drawings shall be final
construction drawings with respect to the applicable Construction Trade, subject to modifications
by Change Orders.
(d) IT, FF&E and Relocation Plans. In accordance with the Plan Schedule, Developer, at is
cost and expense, shall submit to City for its approval the IT Plan, FF&E Plan, and Relocation Plan.
Within ten days after City receives the IT Plan, FF&E Plan, or Relocation Plan, City shall deliver to
Developer written notice of approval or rejection of the submitted drawings, documents, or
schedule; provided that, in the case of a rejection, such notice shall: (i) specify the part or parts that
the City is rejecting; and (ii) include the specific basis for such rejection. Upon approval of the IT
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Plan, FF&E Plan, or the Relocation Plan, such IT Plan, FF&E Plan, or Relocation Plan, respectively,
shall be final, subject to modifications by Change Orders.
(e) Re-submissions. If, at any stage of the Plan Refinement Process, City rejects any
drawings, documents, or schedules, then, within ten days after Developer receives notice from City
of such rejection, Developer shall revise, and submit to City, the applicable drawings, documents,
or schedules. Within ten days after City receives the resubmitted drawings, documents, or
schedules, City shall deliver to Developer written notice of approval or rejection; provided that, in
the case of a rejections, such notice shall: (i) specify the part or party that City is rejecting; and (ii)
include the specific basis for such rejection. Upon approval of the resubmitted drawings,
documents, or schedules, the resubmitted drawings, documents, or schedules shall become part
of the Final Plans subject to modifications by Change Orders.
(f) Final Plans. Upon completion of the Final Documents and Drawings through the Plan
Refinement Process, the aggregated Final Documents and Drawings shall constitute the complete
Final Plans, subject to modification by Change Orders. All references herein to the Final Plans
shall be deemed to be references to the Final Documents and Drawings, until such time as all of
the Final Documents and Drawings are completed; provided that, when all of the Final Documents
and Drawings are completed, all references herein to the Final Plans shall be deemed to be
references to the Final Plans, as modified by Change Orders.
(g) Budget/Costs.
(i) As of the Effective Date, Developer has established the Project Budget
and committed to the delivery of the Project therein.
(ii) The Project Budget shall be the Final Budget, subject to modifications by
Change Orders. Final approval of the Project Budget by City shall be evidenced
by City issuing a Notice to Proceed.
(iii) Notwithstanding any other provision of this Agreement, the Project Budget
shall not include any costs related to the mitigation or remediation of environmental
or geotechnical conditions existing on, in, or at the Project Site prior to the
commencement of construction by Developer, unless such funds related to
unforeseen environmental or geotechnical conditions have been released by City
to Developer. In the event that Developer identifies any potential environmental or
geotechnical issues at the Project Site, Developer shall: (A) immediately cease
construction activity; and (B) provide written notice to City of such environmental
condition. City shall, within 30 days of such written notice, commence remediation
of such environmental or geotechnical condition. The cost of such remediation
shall be at the sole expense of the City. The Substantial Completion Date shall be
extended on a day for day basis for every day construction is delayed by City
remediation activity.
(h) Sales Tax.
(i) As soon as reasonably is practicable, Developer shall submit the
Construction Contract to City for its review.
(ii) Promptly after receipt of the Construction Contract, City shall deliver the
Sales Tax Exemption Form to Developer at the notice address set forth in the
Construction Contract.
(iii) Upon any assessment, or threatened assessment, of Indiana sales and/or
use tax in connection with the purchase of any materials to construct, install, and/or
complete the Project, Developer promptly shall notify City in writing. From and
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after receipt of the foregoing notice, City shall provide such cooperation,
information, and assistance as Developer and/or its contractor reasonably shall
request.
(iv) City shall indemnify and hold harmless Developer and the members,
directors, officers, and employees of Developer, from and against any and all
Claims arising from, or connected with: (A) the charging of Indiana sales and/or
use tax in connection with the purchase of all or any portion of the materials
incorporated into the Project; and/or (B) any interest and penalties assessed by
the Indiana Department of Revenue with respect to the non-payment or late
payment of Indiana sales and/or use tax in connection with the purchase of all or
any portion of the materials to construct, install, and/or complete the Project;
including, without limitation, reasonable attorneys’ fees and court costs. City shall
not be responsible for the charging of any tax related to Developer’s failure to: (A)
apply for an exemption from Indiana sales and/or use tax; (B) comply with the
obligations of a party claiming the exemption; or (C) cooperate with any audit or
investigation of the Indiana Department of Revenue regarding the sales tax
exemption used as part of this Project. The obligations of City under this clause
shall survive the termination of this Agreement.
(i) Documents. Developer shall maintain: (a) at the Project Site all design and construction
documents, including a complete set of record drawings; and (b) electronic access to all such
documents through FTP or other project share site reasonably acceptable to City. These
documents shall be available to the City for reference, copying, and use, and a complete set of
such documents shall be delivered to the City upon completion of the Development Work.
(j) Ownership of Design. All Final Plans shall constitute documents prepared for hire and
shall become property of the City, including transfer of all intellectual property rights and all other
tangible and intangible property interest. In the event that the Final Plans, or any portion thereof,
are not deemed to be made on a “work for hire” basis, Developer irrevocably assigns all right, title,
and interest, including intellectual property rights, in said Final Plans to the City. Developer agrees
to execute such additional documents as may hereafter be reasonably requested by the City to
further evidence such ownership and/or assignment to the City and Developer agrees to include or
require provisions in all contracts with its design professionals, contractors, and subcontracts that
are consistent with and implement the requirements in this Agreement.
10. Change Orders.
(a) Developer Changes. If Developer desires to make any changes to the Final Plans, then
Developer shall submit a Change Order Request to City for review and approval, together with an
estimate of any increases or decreases to the approved Project Budget that would result from the
change proposed in the Change Order Request. Within ten days after City receives the Change
Order Request, City shall deliver to Developer written notice that it approves or rejects the Change
Order Request; provided that: (i) City shall not withhold its approval unreasonably; (ii) it shall not
be unreasonable for City to reject a Change Order Request if the change proposed in the Change
Order Request would result in an increase in the Project Budget; and (iii) if City approves a Change
Order Request for a change that would result in an increase in the Project Budget, then,
notwithstanding anything to the contrary set forth herein, the amount of such increase shall be paid
by City: (A) as such costs are incurred; or (B) in such a manner that the payment does not cause
Developer or the Project Budget to incur any additional cost; provided that, in no event shall
Developer have any obligations with respect to the payment of the amount of such increase. If City
rejects all or any part of the Change Order Request, then such notice shall: (i) specify the part or
parts that City is rejecting; and (ii) include the specific basis for such rejection. If City approves a
Change Order Request, then Developer and City shall execute a Change Order.
(b) City Changes.
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(i) If City desires to make any changes to the Final Plans, then City shall
submit a Change Order Request to Developer for review and approval. Within five
business days after Developer receives the Change Order Request, Developer
shall deliver to City written notice stating whether the change proposed in the
Change Order Request would result in an increase in the Project Budget; provided
that, if the proposed change would result in an increase, then such notice also shall
include an estimate of the amount of the increase.
(i) If the foregoing notice states that the change proposed in the Change
Order Request would not result in an increase in the Project Budget, then, within
five business days after delivery of such notice, Developer shall deliver to City
written notice that it approves or rejects the Change Order Request; provided that
Developer shall not withhold its approval unreasonably.
(iii) If the foregoing notice states that the change proposed in the Change
Order Request would result in an increase in the Project Budget, then: (A) such
notice also shall include an estimate of the amount of the increase; (B) within five
business days after receipt of such notice, City shall provide written notice to
Developer as to whether City would like to withdraw the Change Order Request.
If City does not elect to withdraw the Change Order Request, then, within five
additional business days, Developer shall deliver to City written notice that it
approves or rejects the Change Order Request; provided that Developer shall not
withhold its approval unreasonably.
(iv) If Developer approves a Change Order Request, then Developer and City
shall execute a Change Order. If the approved Change Order Request is for a
change that will result in an increase in the Project Budget, then, notwithstanding
anything to the contrary set forth herein, the increase in the Project Budget shall
be paid by City in accordance with Section 10(a); provided that, in no event shall
Developer have any obligations with respect to the payment of the amount of such
increase.
(v) If Developer rejects all or any part of the Change Order Request, then
such notice shall: (A) specify the part or parts that Developer is rejecting; and
(B) include the specific basis for such rejection.
(c) Permitted Change. Notwithstanding anything to the contrary set forth herein: (i) Developer
shall not be required to obtain the approval of City with respect to a Permitted Change; and (ii) a
Change Order with respect to a Permitted Change shall be effective if executed only by Developer.
11. Construction.
(a) Permits. Prior to commencing construction of the Project, Developer shall obtain and
submit to City for its review the Required Permits.
(b) Construction. Developer shall construct the Project: (i) in a good and workmanlike manner;
(ii) in accordance with the Final Plans (as modified by any Change Orders) and the terms and
conditions of this Agreement; (iii) in compliance with the Laws and the Required Permits; (iv) and
provide the City with a warranty that: (A) the materials and equipment furnished will be of good
quality and new unless the Final Plans require or permit otherwise; and (B) the Project has been
constructed in compliance with the Final Plans; (v) provide the City with as-built Plan and to the
extent granted to Developer, grant to City a license to use such Plans in the use, occupancy,
operation, maintenance, repair, alterations, and additions to the Project; and (vi) provide the City
with an assurance that the Developer will, for a period of one (1) year from the date of the issuance
of the certificate of occupancy on the Development Work, correct any Nonconforming Work after
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receipt of notice from the City to do so, unless the City has previously given Developer written
acceptance of such Nonconforming Work, provided a Latent Defect shall not have been deemed
accepted unless such Latent Defect is expressly identified in such written acceptance. If the City
fails to: (i) notify the Developer of alleged Nonconforming Work with the one year period; and (ii)
provide the Developer a reasonably period of time to correct the Nonconforming Work; then City
waives the right to require correction of the Nonconforming Work by the Developer and waives the
right to make a claim for breach of the Developer’s obligations under this section of the Agreement.
If the Developer fails to correct Nonconforming Work within a reasonable time during that period
after receipt of notice from the City, the City may: (i) correct the Nonconforming Work; and (ii)
submit an invoice for reimbursement of the costs associated with such cure of the Nonconforming
Work, which shall be paid by Developer within thirty (30) days of submission thereof.
Notwithstanding any provision contained herein, restrictions on the length of warranties shall only
apply to labor and/or workmanship. Developer acknowledges that it shall assign to City the
manufacturer’s warranties, without limitation to time period. The provisions of this Section shall
survive termination of this Agreement.
(c) Safety and Security. Developer shall maintain safety at the Project Site during the term
and security at the Project Site during the period of the Development Work at a level consistent
with the standards for such similar projects in the immediate geographic area. Without limiting the
foregoing, Developer shall:
(i) take all necessary precautions for the safety and security of the
Development Work and provide all necessary protection to prevent damage, injury,
or loss caused by trespass, negligence, vandalism, malicious mischief, or any
other course related to the Development Work for: (A) workers at and visitors to
the Project Site; (B) passersby, neighbors, and adjacent properties; and (C)
materials and equipment under the care, custody, or control of Developer or its
subcontractors on the Project Site;
(ii) establish and enforce all necessary safeguards for safety and protections,
including posting danger signs and other warnings against hazards;
(iii) implement a comprehensive safety program in accordance with the Laws;
(iv) give all notices and comply with the Laws relating to the safety of persons
or property or their protection from damage, injury, or loss;
(v) operate and maintain all equipment in a manner consistent with the
manufacturer’s safety requirements;
(vi) provide for safe and orderly vehicular movements;
(d) Operation. Developer shall operate the completed Project during the Operating Period;
provided that City shall be responsible for the direct payment of all costs and expenses incurred in
connection with such operation and Developer shall have no obligation to make any payment
related to the operation of the Project during the Operating Period.
(e) Records. Developer shall keep and maintain true, correct, accurate, and complete Books
and Records. All Books and Records shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied. City and its attorneys, accountants,
representatives, architects, engineers, and consultants at all reasonable times shall have: (i) free
access to, and rights of inspection of, the Books and Records; and (ii) the right to audit, make
extracts from, and receive from Developer originals or accurate copies of, the Books and Records.
Nothing contained in this Section 11(e) shall be construed as making the Books and Records public
records under the applicable Laws.
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(f) Bonds. Upon the issuance of the Construction Commencement Notice and until the Project
has: (i) received its certificate of occupancy; and (ii) Developer has demonstrated that all
outstanding payments have been made to subcontractors performing work and those persons or
entities providing labor, materials and services for the Project, subject to amounts withheld in
dispute or in retainage, to the sole satisfaction of the City; the Bonds shall be in effect.
Notwithstanding the obligation of the Developer to provide the Bonds as provided for in this
Agreement, the Developer also has an affirmative obligation to timely pay any and all
subcontractors, suppliers, laborers, and service and to take all other action necessary to prevent
the filing of Liens on the Project Site.
(g) Warranties of Development Work. Developer shall, for the protection of the City, obtain
from the General Contractor, all subcontractors, vendors, suppliers, and other persons from which
Developer procures structures, improvement, fixtures, machinery, equipment, and materials to be
incorporated in to the Project such warranties and guarantees as are normally provided with respect
thereto and as are required under the Final Plans, each of which shall be assigned to the City from
and after the expiration of the Term to the full extent of the terms thereof. No such warranty shall
relieve Developer of any obligation hereunder, and no failure of any warranted or guaranteed
structures, improvements, fixtures, machinery, equipment, or materials or a failure or refusal of a
contractor or supplier to honor its warranty obligations shall be the cause for any increase in the
Final Project Budget Costs or excuse any non-performance of the Development Work unless such
failure is related to a breach of this Agreement by City.
(h) Unauthorized Aliens. Developer: (i) shall verify the work eligibility status of all newly-hired
employees through the E-Verify Program; and (ii) shall not: (A) knowingly employ, or contract with,
an Unauthorized Alien; or (B) retain an employee, or contract with a person, that Developer learns
is an Unauthorized Alien. To the extent required by IC §§22-5-1.7, Developer shall require its
contractor and each subcontractor to certify to Developer that, at the time of certification, the
contractor or such subcontractor: (i) does not knowingly employ, or contract with, any Unauthorized
Aliens; and (ii) has enrolled, and is participating, in the E-Verify Program. Developer shall maintain
such certifications on file until the construction contract or the applicable subcontract expires or is
terminated.
(i) No Discrimination. Developer shall not discriminate against any employee or applicant for
employment because of race, sexual orientation, gender or gender identity, religion, color, national
origin, ancestry, age, disability, or United States Military service veteran status. Developer agrees
to, or cause its contractor or its subcontractors to: (i) post in conspicuous places, visible to
employees and applicants for employment, notices setting forth the provisions of this Subsection;
and (ii) state, in all solicitations or advertisements for employees placed or published by or on behalf
of Developer, that all qualified applicants will receive consideration for employment without regard
to race, sexual orientation, gender or gender identity, religion, color, national origin, ancestry, age,
disability, or United States Military service veteran status.
12. Observation.
(a) Observation. Upon reasonable written notice delivered to Developer, which notice shall
specify the portion of the construction to be observed, City may perform a Permitted Observation.
If applicable after a Permitted Observation, City shall deliver a Non-Compliance Notice to
Developer.
(b) Final Observation. Developer shall deliver to City a written request for the Final
Observation of the Project at least five business days prior to the Substantial Completion Date. On
or before the later of the date that is five business days after: (i) receipt by City of such request; or
(ii) the Substantial Completion Date; City shall: (i) conduct the Final Observation; and (ii) deliver to
Developer, if applicable, a Non-Compliance Notice. Upon: (i) correction of all Material Defects
identified in the Non-Compliance Notice; or (ii) deemed acceptance pursuant to Subsection 12(c);
City shall have no further inspection rights pursuant to this Agreement with respect to the Project.
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Within five business days after City conducts the Final Observation, Developer and City shall
identify the “punch-list” items. Developer shall complete all “punch-list” items within 60 days after
the “punch-list” items are identified.
(c) Non-Compliance. If City delivers to Developer a Non-Compliance Notice following an
Observation in accordance with this Section or after deemed acceptance as provided for in Section
12(b), then Developer shall correct, as soon as is practicable, all Material Defects identified in the
Non-Compliance Notice. All items or components of the Project with respect to which: (i) an
Observation is conducted; and (ii) no Material Defects are identified in a timely Non-Compliance
Notice; shall be deemed to be accepted by City.
(d) Latent Defects. Notwithstanding anything to the contrary set forth herein, no acceptance,
or deemed acceptance, by City pursuant to this Section shall be applicable with respect to any
Latent Defects.
(e) General.
(i) In connection with any Observation pursuant to this Section, City shall: (A)
comply with all health and safety rules of which City has been informed that have
been established for personnel present on the construction site; and (B) coordinate
the observations so that the observations do not interfere with the performance of
construction. Developer shall have the right to accompany, and/or have its
construction manager accompany, City during any Observation.
(ii) An acceptance, or deemed acceptance, by City pursuant to this Section
shall not mean that City has accepted, or Developer has been relieved of,
responsibility for: (A) compliance with the Laws; (B) the proper application of
construction means or methods; or (C) correcting any portion of the Project if it
later is determined that such portion is inconsistent with the as-built plans as
described in Section 11(b) or proper completion of a subsequent portion of the
Project.
(iii) Performance of an Observation by City shall not relieve Developer of its
obligations to obtain all inspections required by the Laws.
13. Disbursements.
(a) Initial Disbursement. Attached as Exhibit F is Developer’s initial Disbursement Request.
(b) Disbursement Requests. Upon the receipt from the Developer of a Disbursement Request
with respect to the Project Costs (including the required accompanying documents and in the form attached
hereto as Exhibit G), City shall request that the Trustee disburse a corresponding amount of Bond Proceeds
to parties identified in the Disbursement Request pursuant to the terms and conditions of the Trust
Indenture, which may include the Developer if: (i) the Developer has previously paid costs identified in the
Disbursement Request; or (ii) the Developer is owed fees, other expenses, or unused contingency pursuant
to the Project Budget; provided that, no disbursement shall be made while there is a continuing Event of
Default by Developer that is occurring beyond the applicable cure period.
(c) Frequency. City shall not be required to disburse Bond Proceeds more frequently than
monthly, or as otherwise required under the Trust Indenture.
14. Insurance.
(a) Insurance Policies. During construction of the Project and terminating upon the Substantial
Completion Date, Developer shall maintain the policies of insurance, including but not limited to
Builder’s Risk, General Commercial Liability, and Workers Compensation, reflected on the
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certificate attached hereto as Exhibit C. Each such policy shall be written by a company reasonably
acceptable to City, and Developer shall provide notice of any intended modification to, or
cancellation of, such policy to City at least 30 days in advance. The policies of insurance required
by this Section to be maintained by Developer shall name City as an additional insured. Developer
shall deliver to City certificates of the insurance policies required by this Section, executed by the
insurance company or the general agency writing such policies.
(b) Risk of Loss. If the Project Site, or any part thereof, is: (a) damaged or destroyed by fire
or other casualty; or (b) taken by condemnation; then City may apply the proceeds or any insurance
policy or condemnation award to the Final Project Budget.
15. Key Personnel.
(a) Key Personnel Identified. Developer shall make commercially reasonable efforts to retain,
employ, and utilize the individuals specifically identified in Exhibit D to fill the corresponding
positions listed therein. Developer shall not change or substitute such individuals except due to
retirement, death, disability, incapacity, or voluntary or involuntary termination of employment, or
as otherwise approved by the City pursuant to Subsection 15(b).
(b) Replacement. Developer shall provide notice to the City of any proposed replacement for
any key personnel positions. The City shall have the right to review the qualifications and character
of each individual to be appointed to a key personnel position (including, personnel employee by
contracts to fill any such position) and to state any basis for disapproving Developer’s use of such
individual in such position prior to the commencement of any services by such individual.
(c) Commitment to Project. Developer shall cause each individual filling a key personnel
position to dedicate the full amount of time necessary for the proper prosecution and performance
of the Development Work. Developer shall commit each of the key personnel identified in Exhibit
D to the Project such as to reasonably ensure that all such individuals shall be able to fulfill their
respective duties on the Project.
16. Transfer. Upon the: (a) expiration of the Operating Period; or (b) a termination of this Agreement
pursuant to Section 21; Developer and City shall execute the Transfer. At the Transfer, the following
documents and instruments shall be executed and delivered:
(a) any documents reasonably required by City to evidence the conveyance of the Project to
the City or its designee;
(b) a confirmation by each of Developer and City of the applicable representations and
warranties set forth in Section 8;
(c) “as-built” drawings, in the form of marked-up drawings maintained by Developer or its
subcontractors showing significant or material changes or deviations made from the Final Plans
during construction. Developer shall compile a set of final drawings, incorporating the “as-built”
information from the “as-built” drawings provided to it. City shall be entitled to assume the
information provided on the “as-built” drawings to be reliable and to accurately reflect the actual,
as-built conditions of the Development Work so depicted;
(d) copies of such resolutions, consents, authorizations, and other evidence as either party
reasonably may request to establish that: (i) the persons executing and delivering the foregoing
documents have been empowered and authorized by all necessary action of Developer or City, as
the case may be; and (ii) the execution and delivery of such documents, and the performance by
Developer or City of its obligations hereunder and under the foregoing documents, have been
authorized by Developer or City, as the case may be; and
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(e) such other customary documents and instruments as either party reasonably may request
in connection with the Transfer.
17. Default.
(a) Events of Default. It shall be an “Event of Default” if either party fails to perform or observe
any term or condition of this Agreement to be performed or observed by it: (i) with respect to the
obligation to pay money, if such failure is not cured within ten days after such payment is due; and
(ii) with respect to any other obligation, if such failure is not cured within the Cure Period.
(b) Remedies. Whenever an Event of Default occurs, the non-defaulting party may take such
actions at law or in equity as are necessary or appropriate to: (i) collect any payments due under
this Agreement; (ii) protect the rights granted to the non-defaulting party under this Agreement; (iii)
enforce the performance or observance by the defaulting party of any term or condition of this
Agreement (including, without limitation, the right to specifically enforce any such term or condition);
or (iv) cure, for the account of the defaulting party, any failure of the defaulting party to perform or
observe a material term or condition of this Agreement to be performed or observed by it. If the
non-defaulting party incurs any costs or expenses in connection with exercising its rights and
remedies under, or enforcing, this Agreement (including, without limitation, attorneys’ fees and
court costs), then the defaulting party shall reimburse the non-defaulting party for all such costs
and expenses (including, without limitation, attorneys’ fees and court costs), together with interest
at the rate of 10% per annum.
(c) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to, a non-
defaulting party is intended to be exclusive of any other available right or remedy, unless otherwise
expressly stated; instead, each and every such right or remedy shall be cumulative and in addition
to every other right or remedy given under this Agreement or now or hereafter existing at law or in
equity. No delay or omission by a non-defaulting party to exercise any right or remedy upon any
Event of Default shall impair any such right or remedy, or be construed to be a waiver thereof, and
any such right or remedy may be exercised from time to time, and as often as may be deemed to
be expedient. To entitle a non-defaulting party to exercise any of its rights or remedies, it shall not
be necessary for the non-defaulting party to give notice to the defaulting party, other than such
notice as may be required by this Section or by the Laws.
(d) Waiver. No failure to exercise, and no delay in exercising, any right or remedy under this
Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any
provision of this Agreement will be deemed to be a waiver of any subsequent breach of that
provision or of any similar provision.
(e) No Special, Consideration, or Punitive Damages. In no event shall either party hereto be
liable to the other or obligated in any manner to pay to the other party any special, incidental,
consequential, punitive, or similar losses of damages based upon claims arising out of or in
connection with the performance or no=performance of its obligations or otherwise under this
Agreement, or any representation made in this Agreement being materially incorrect, whether such
claims are based upon contract, tort, negligence, warranty, or any other legal theory. This Section
shall not limit the recovery of any such losses or damages under Section 18 (Mutual
Indemnification) in respect of claims by third parties.
(f) Liquidated Damages for Failure to Meet Project Schedule. If Developer does obtain a
certificate of occupancy for the Project by the date set forth in the Plan Schedule, liquidated
damages will be assessed and recovered by City to compensate City for such delay in completion.
City will incur substantial economic damages and losses which are and will hereafter be difficult or
impossible to quantify, ascertain, and prove as actual damages for such delay. Such damages are
foreseen to include, without limitation, extended or additional costs for observation or inspection,
or professional services provided by Owner Representative and Owner’s consultants. Accordingly,
in lieu of actual damages, and not as a penalty, Developer and its surety shall be liable to City, and
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City shall be entitled to collect and recover from Developer and its surety, liquidated damages in
the amount of $1,000 per day for each calendar day that a certificate of occupancy is not provided
beyond the date set forth in the Plan Schedule, as adjusted for time extensions pursuant to Force
Majeure. The amount of liquidated damages shall double every 15 calendar days that such failure
to complete the Project continues.
18. Mutual Indemnification.
(a) Developer. Developer shall indemnify and hold harmless City from and against any and
all Claims arising from or connected with: (i) mechanics’ liens filed against the Project or the Project
Site for work performed by Developer or any party acting by, under, through, or on behalf of
Developer; (ii) breaches by Developer under contracts to which Developer is a party, to the extent
that such contracts relate to the performance of any work on the Project Site by Developer or any
party acting by, under, through, or on behalf of Developer; (iii) injury to, or death of, persons or loss
of, or damage to, property, suffered in connection with performance of any work on the Project Site
by Developer or any party acting by, under, through, or on behalf of Developer; (iv) the negligence
or wilful misconduct of Developer or any party acting by, under, through, or on behalf of Developer;
or (v) the breach by Developer of any term or condition of this Agreement, including but not limited
to the failure of Developer to timely pay subcontractors, suppliers, laborers and service providers.
(b) City. City shall indemnify and hold harmless Developer from and against any and all Claims
arising from or connected with: (i) the negligence or wilful misconduct of City or any party acting
by, under, through, or on behalf of City; or (ii) the breach by City of any term or condition of this
Agreement.
Notwithstanding anything to the contrary set forth herein, the obligations of the parties under this Section
shall survive the termination of this Agreement.
19. Assignment. Neither City nor Developer shall assign this Agreement without the prior written
consent of the other party, provided that: (a) without the prior written approval of Developer, City may assign
this Agreement to another agency or instrumentality of the City that is legally able to perform the obligations
of the City hereunder; and (b) without the prior written approval of City, Developer may assign this
Agreement to any entity in which the principals of the Developer hold a controlling interest. Notwithstanding
any assignment permitted under this Section, Developer or City, as the case may, shall remain liable to
perform all of the terms and conditions to be performed by it under this Agreement, and the approval by the
other party of any assignment shall not release Developer or City, as the case may be, from such
performance.
20. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in
writing, and shall be deemed to have been given when: (a) delivered in person to the other party; or (b)
sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to Developer
at Envoy Construction Services, LLC, 8890 East 116th Street, Suite 250, Fishers, Indiana 46250, Attn: John
Barbee, with a copy to: Taft Stettinius & Hollister, One Indiana Square, Suite 3500, Indianapolis, Indiana
46204, Attn: Cameron G. Starnes, and to City at City Department of Administration, One Civic Square,
Carmel, Indiana 46032, Attn: Jim Crider, with a copy to Corporation Counsel, One Civic Square, Carmel,
Indiana 46032, Attn: Jon Oberlander and to Wallack Somers & Haas, PC, One Indiana Square, Suite 2300,
Indianapolis, Indiana 46204, Attn: Adam W. Collins. Either party may change its address for notice from
time to time by delivering notice to the other party as provided above.
21. Termination and Incurred Expenses. If this Agreement terminates pursuant to the terms and
conditions of this Agreement, Developer shall: (a) assign to City its right, title, and interest in and to the
Final Plans and the materials obtained by it in connection with the due diligence undertaken by Developer,
if any, which rights, title, and interest shall not prohibit City from using the Final Plans and materials in
connection with the construction of the Project; and (b) in accordance with the terms and conditions of this
Agreement, cuase and complete the Transfer; within 10 days of notice of such termination.
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22. Authority. Each undersigned person executing this Agreement on behalf of Developer and City
represents and certifies that: (a) he or she has been empowered and authorized by all necessary action of
Developer and City, respectively, to execute and deliver this Agreement; (b) he or she has full capacity,
power, and authority to enter into and carry out this Agreement; and (c) the execution, delivery, and
performance of this Agreement have been authorized by Developer and City, respectively.
23. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed
in, or prevented from, observing or performing any of its obligations under, or satisfying any term or
condition of, this Agreement as a result of Force Majeure; then: (a) the party asserting Force Majeure shall
deliver written notice to the other party; (b) such observation, performance, or satisfaction shall be excused
for the period of days that such observation, performance, or satisfaction is delayed or prevented; and (c)
the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same
period.
24. Taxes. City shall be solely responsible for, and shall pay and discharge when due all taxes,
assessments, and other governmental charges that are lawfully imposed upon the Project Site, the Project,
or any party thereof.
25. Reference Information Documents.
(a) The City has provided and disclosed to the Developer the Reference Information
Documents. The Reference Information Documents are provided only for the purposes of
disclosure.
(b) The City shall not be responsible or liable in any respect for any causes of action, claims,
or losses whatsoever suffered by the Developer or any person performing on its behalf by reason
of any use of information, opinions, or recommendations contained in, any conclusions the
Developer may draw from, or any action or forbearance in reliance on, the Reference Information
Documents, except to the extent that information in the Reference Information Documents is
expressly made the basis for any schedule or monetary relief available hereunder.
(c) The City does not represent, warranty, or guarantee the accuracy, completeness, or fitness
of and the Developer is not entitled to rely upon a presumption that: (i) the Reference Information
Documents comply with, or are otherwise in conformity with, the requirements of this Agreement,
any necessary governmental approvals, or the Laws.
26. Non-Discrimination. In accordance with Indiana Code 22-9-11-10, the Developer shall not
discriminate against any employee or applicant available for employment, to be employed in the
performance of this Agreement, with respect to hire, tenure, terms, and conditions or privileges of
employment, because of such person’s race, color, religion, sex, disability, national origin, or ancestry.
27. Dealings with Iran. In accordance with Indiana Code 5-22-16.5, by executing this Agreement,
Developer certifies that Developer is not engaged in investment activities with Iran.
28. Debarment and Suspension.
(a) Developer certifies, by entering into this Agreement, that neither it nor its principals nor any
of its subcontractors are presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any
department, agency, or political subdivision of the State. The term “principal” for the purposes of
this Section means an officer, director, owner, partner, key employee, or other person with primary
or supervisory responsibility, or a person who has a critical influence or substantive control over
the operations of the Developer.
(b) Developer certifies that it has verified the state and federal suspension and debarment
status for all subcontractors receiving funds under this Agreement and shall be solely responsible
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for any recoupment, penalties, or costs that might arise from the use of a suspended or debarred
subcontractor. Developer shall immediately notify the City if any subcontractor becomes debarred
or suspended, and shall, at the City’s request, take all steps required by the City to terminate
Developer’s contractual relationship with the subcontractor for work to be performed under this
Agreement.
29. Ownership of Project. The Project shall be owned by the City at all times. Developer shall not
have any legal, equitable, or other ownership interest in the Project.
30. Relationship of the Parties. Developer is an independent contractor of the City and the
relationship between the parties shall be limited to performance of this Agreement in accordance with its
terms. Neither party shall have any responsibility with respect to the services to be provided or contractual
benefits assumed by the other party. Nothing in this Agreement shall be deemed to constitute either party
a partner, agent, or legal representative of the other party. No liability or benefits, such as worker
compensation, pension rights or liabilities, or other provisions or liabilities arising out of or related to a
contract employee as a result of this Agreement or the performance thereof.
31. Developer Assumption of Risk. Except to the extent expressly allocated to the City or otherwise
provided for under this Agreement, all risks, costs, and expenses in relation to the performance by the
Developer of the obligations under this Agreement are allocated to, and accepted by, Developer as its entire
and exclusive responsibility.
32. Actions of the City in its Governmental Capacity. Nothing in this Agreement shall be interpreted
as limiting the rights and obligations of the City (or any department or agency thereof) under the Laws in
their governmental capacity.
33. Miscellaneous. Subject to Section 16, this Agreement shall inure to the benefit of, and be binding
upon, Developer and City, and their respective successors and assigns. This Agreement constitutes the
entire agreement between Developer and City with respect to the subject matter hereof, and may be
modified only by a written agreement signed by both Developer and City. The invalidity, illegality, or
unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the
validity, legality, or enforceability of the remaining terms and conditions hereof. Whenever in this
Agreement a singular word is used, it also shall include the plural wherever required by the context and
vice versa. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Indiana. All proceedings arising in connection with this Agreement shall be tried and litigated only in the
state courts in Hamilton County, Indiana, or the federal courts with venue that includes Hamilton County,
Indiana. Developer waives, to the extent permitted under applicable law: (a) the right to a trial by jury; and
(b) any right Developer may have to: (i) assert the doctrine of “forum non conveniens”; or (ii) object to venue.
All Exhibits to this Agreement are attached hereto and incorporated herein by reference. All Exhibits to this
Agreement are attached hereto and incorporated herein by reference. The parties waive the application of
any rule of law which otherwise would be applicable in connection with the construction of this Agreement
that ambiguous or conflicting terms or provisions should be construed against the party who (or whose
counsel) prepared the executed agreement or any earlier draft of the same.
[Remainder of page left intentionally blank.]
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IN WITNESS WHEREOF, Developer and City have executed this Public Private Agreement
(Carmel Police and City Court BOT) as of the date set forth above.
DEVELOPER:
Envoy Construction Services, LLC
By:
Printed:
Title:
CITY:
City of Carmel, Indiana
By: ______________________________
Printed: ___________________________
Title: ______________________________
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INDEX TO EXHIBITS
Exhibit A Depiction of Project Site
Exhibit B Plan Schedule
Exhibit C Required Insurance Policies (Developer)
Exhibit D Key Personnel
Exhibit E Project Budget
Exhibit F Initial Disbursement Request
Exhibit G Form of Disbursement Request
Exhibit H GMP Report
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EXHIBIT A
Depiction of Project Site
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EXHIBIT B
Plan Schedule
Plan Type: Completion Date:
IT Plan On or before the Closing Date
FF&E Plan On or before the Closing Date
Relocation Plan On or before the Closing Date
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EXHIBIT C
Required Insurance Policies (Developer)
Insurance shall be not less than the amounts set forth below:
A. Commercial General Liability (Occurrence Basis)
Covering bodily injury, personal injury, property damage, contractual liability, and product/completed
operations.
Each Occurrence Limit: $1,000,000
Damage to Rented Premises: $100,000 (each occurrence)
Medical Expense Limit: $5,000
Personal and Advertising Injury Limit: $500,000
General Aggregate Limit: $2,000,000 (other than products/completed
operations)
NOTE: GENERAL AGGREGATE TO APPLY PER PROJECT
Products/Completed Operations: $1,000,000
B. Auto Liability $1,000,000 (combined single limit) (owned,
hired, & non-owned)
Bodily Injury & Property Damage: $1,000,000 (each accident)
C. Excess/Umbrella Liability: $2,000,000 (each occurrence and aggregate)
D. Worker’s Compensation & Disability: Statutory
E. Employer’s Liability:
Bodily Injury by Accident/Disease: $100,000 each employee
Bodily Injury by Accident/Disease: $250,000 each accident
Bodily Injury by Accident/Disease: $500,000 policy limit
F. Professional Liability Insurance. Developer shall carry and maintain during the continuance of this
Agreement, professional liability insurance in the amount of $1,000,000 for single limit claims and
$2,000,000 in the aggregate. Developer’s policy of insurance shall contain prior acts coverage sufficient to
cover all work performed by Developer for this Project. Upon City’s request, Developer shall give prompt
notice to City of any and all claims made against this policy during the period in which this policy is required
to be maintained pursuant to this Agreement. If the insurance is written on a claims-made basis and
coverage is cancelled at any time, Developer will obtain, at its cost, an extended reporting endorsement
which provides continuing coverage for claims based upon alleged acts or omissions during the term of the
Agreement until all applicable statute of limitation periods have expired.
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G. Builder’s Risk. In the amount of the design and construction
cost for the respective Project
Developer shall provide City with a certificate of insurance, naming City as an “additional insured”, showing
such coverage then in force (but not less than the amount shown above), shall be filed with City prior to
commencement of any work. These certificates shall contain a provisions that the policies and the coverage
afforded will not be canceled until at least 30 days after written notice has been given to the City.
Developer may, with the prior approval of City, substitute different types of coverage for those specified if
the total amount of protection is not reduced. Developer shall be responsible for all deductibles.
Nothing in the above provision shall be operate as or be construed as limiting the amount of liability of
Developer in the above enumerated amounts.
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EXHIBIT D
Key Personnel
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EXHIBIT E
Project Budget
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EXHIBIT F
Initial Disbursement Request
To be provided at or prior to Closing.
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EXHIBIT G
Form of Disbursement Request
DISBURSEMENT REQUEST
Disbursement No.: ___________________
Date: ___________________
Disbursement Amount: $______________________
__________________ (the “Developer”), pursuant to a Public Private Agreement (Carmel
Police Station and City Court BOT) dated March __, 2022, among the Developer and City of
Carmel, Indiana, hereby requests the disbursement of funds in the Disbursement Amount stated
above and certifies that such amount is in accordance with the attached AIA Document G702 and
AIA Document G703 and the attached invoices, lien releases and other documentation provided
in support of this Disbursement Request.
The issuance of an application for payment also shall constitute a representation that the
entities list in Schedule I attached hereto are entitled to payment in the amount certified, or that
the Developer has already paid such entities and is entitled to reimbursement in the amount
certified.
___________________________________
By:
Printed:_____________________________
Title:_______________________________
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EXHIBIT H
GMP Report
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