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HomeMy WebLinkAboutResolution BPW 03-05-25-02/CFD/Second Amended Sublease and Management AgreementRESOLUTION NO. BPW 03-05-25-02 A RESOLUTION OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF CARMEL, INDIANA APPROVING SECOND AMENDED AND RESTATED SUBLEASE AND MANAGEMENT AGREEMENT WITH CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA (Carmel Fire Headquarters Project) WHEREAS, the City of Carmel, Indiana (the “City”) approved and executed an Interlocal Cooperation Agreement for Public Facilities and Equipment, Financing, Purchase, Construction and Maintenance with Clay Township of Hamilton County, Indiana (the “Township”), recorded with the Hamilton County Recorder on June 14, 2019 as Document #2019025026 (the “Interlocal Agreement”) providing for the acquisition, construction and use of certain fire protection and emergency response facilities and equipment to protect the citizens of the City and the Township; and WHEREAS, in furtherance of the Interlocal Agreement, the City and the Township executed a Sublease and Management Agreement by and between the City, the Carmel Clay Municipal Building Corporation (the “Corporation”) and the Township dated September 12, 2019 (the “Original Agreement”) for the sublease and management of the Carmel Clay Community Center and Fire Headquarters located at 210 Veterans Way, Carmel, Indiana 46032 (the “Project”); and WHEREAS, in furtherance of the Interlocal Agreement, the City and the Township executed an Amended and Restated Sublease and Management Agreement by and between the City, the Corporation and the Township effective as of December 12, 2023 (the “Restated Agreement”) to reflect the operation of an event space on the third and fourth floors of the Project managed by the Township (the “Event Space”); and WHEREAS, effective as of September 15, 2025 (the “Effective Date”) use of the Event Space as a reception venue will be discontinued and the Township desires to grant the use of the entire Project to the City, without limitation or reservation; and WHEREAS, the City, the Township and the Township Trustee as authorized representative of the Building Corporation (the “Authorized Representative”) desire to replace the Restated Agreement with the Second Amended and Restated Sublease and Management Agreement (the “Second Restated Agreement”) attached hereto as Exhibit A and incorporated herein. NOW, THEREFORE, BE IT RESOLVED, by the Board as follows: Section 1. The above recitals are incorporated herein as if set out in full. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 Section 2. The Second Restated Agreement in the form attached hereto as Exhibit A is hereby approved and confirmed in every way and, when executed, shall amend, replace and fully restate the Original Agreement and the Restated Agreement. Section 3. The Presiding Officer is hereby authorized, empowered and directed to execute the Second Restated Agreement with such revisions as are agreed upon by them as evidenced by their execution thereof, without further action or approval of the Board. Section 4. The Presiding Officer is hereby authorized, empowered and directed to take any and all further actions, and to execute all documents necessary to give effect to and enter into the Second Restated Agreement in accordance with the provisions thereof, and any and all actions heretofore take in this regard are hereby ratified and approved in every way. Section 5. This Resolution shall be in full force and effect immediately upon its passage. SO RESOLVED. PASSED by the Board of Public Works and Safety of the City of Carmel, Indiana this __ day of _____________, 2025, by a vote of ____________ayes and ___________nays. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety (“Board”) By:_________________________________________ Laura Campbell, Presiding Officer Date:________________________________________ ____________________________________________ James Barlow, Member Date:________________________________________ ____________________________________________ Alan Potasnik, Member Date:________________________________________ Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 0 3/5/2025 3/5/2025 March 5 3/5/2025 0 1 SECOND AMENDED AND RESTATED SUBLEASE AND MANAGEMENT AGREEMENT (Fire Administration and Community Center Building) THIS SECOND AMENDED AND RESTATED SUBLEASE AND MANAGEMENT AGREEMENT (the “Second Restated Agreement”) is entered into by and among Clay Township of Hamilton County, Indiana (the “Township”), the Carmel Clay Municipal Building Corporation (the “Corporation”) and the City of Carmel, Indiana (the “City”), and shall become effective as of the Effective Date indicated in Section 12 below. This Second Restated Agreement supersedes and replaces the Sublease and Management Agreement by and between the Township, the Corporation and the City dated September 12, 2019 (the “Original Agreement”) as amended and restated by an Amended and Restated Sublease and Management Agreement with an effective date of December 12, 2023 (the “Restated Agreement”). WITNESSETH THAT: WHEREAS, the Corporation is the owner of a certain parcel of real estate and related improvements thereon located at 210 Veterans Way, Carmel, Indiana 46032, the legal description of which is attached hereto as Exhibit “A” and fully incorporated herein by this reference (the “Property”); and WHEREAS, the City and the Township have entered into an Interlocal Cooperation Agreement for Public Facilities and Equipment, Financing, Purchase, Construction and Maintenance recorded with the Hamilton County Recorder on June 14, 2019 as Document #2019025026 (the “Interlocal Agreement”), providing for the acquisition, construction, and use of certain fire protection and emergency response facilities and equipment to protect the citizens of the City and the Township; and Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 2 WHEREAS, pursuant to that certain Lease Agreement dated March 29, 2019, as amended (the “Lease”), the Corporation has leased to the Township the Property and the Project described in Exhibit “B” attached hereto and fully incorporated herein by this reference (the “Project”), pursuant to the provisions of I.C. 36-1-10; and WHEREAS, the Corporation has completed construction of the Project in conjunction with the City and the Township and the Project is now occupied by the Carmel Fire Department (the “Department”) as the designee of the City; and WHEREAS, the Township and the Corporation desire to grant to the City the right, power, and authority to access and occupy the Property and the Project for public safety and other public purposes in accordance with the terms of the Lease and this Second Restated Agreement, for the protection of the citizens and property located in the City and the Township, and to operate the Project throughout the term of the Lease; and WHEREAS, the use of the Project has been altered since the execution of the Original Agreement to provide for the use and occupancy on a non-exclusive basis of the third floor and rooftop terrace of the Project (collectively the “Event Space”) as provided in the Restated Agreement; and WHEREAS, the use of the Project has been further altered since the execution of the Restated Agreement to eliminate the provisions for the Event Space and the parties now desire for the City to have full control and use of all floors of the Project. NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 3 1. Term. The term of this Second Restated Agreement shall run from the Effective Date through July 15, 2032, the final term of the Lease. Any extension of or decrease in the term of the Lease, whether such extension or decrease is automatic or through the exercise of any contractual or statutory rights under the Lease, shall result in an equivalent extension of or decrease in the term of this Second Restated Agreement. 2. Grant of Possession. Upon final completion of the Project, the Township and the Corporation hereby grant to the City the exclusive right, power, and authority to access, occupy, improve, and operate the Property and the Project at all times during the term of this Second Restated Agreement, all in accordance with the terms of the Lease and this Second Restated Agreement. At all times during the term of this Second Restated Agreement, and absent a material breach by the City of its covenants and agreements provided herein, the City shall have the peaceable and quiet enjoyment and possession of the Property and the Project without any manner of hindrance from the Corporation or the Township or any parties lawfully claiming under the foregoing. The City represents that the Property and the Project shall be utilized primarily for the purposes of facilitating the public safety operations of the Carmel Fire Department (the “Department”), but other governmental purposes and uses are not prohibited. Notwithstanding the foregoing, the parties acknowledge that the Lease serves to secure certain financing secured by the Township and the Corporation for the construction of the Project in accordance with the terms of the Interlocal Agreement as approved by the Township Board of the Township under Resolution No. 2019-04-30-02 and by the Common Council of the City as Ordinance No. D-2467-19 and that the rights of the City under this Second Restated Agreement shall be subject to the rights and obligations of the Township, the Corporation and other parties under that certain Trust Indenture and related documents that provide for the financing of the Project through the Lease. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 4 3. Grant and Sublease. In order to further the intent of this Second Restated Agreement, the Township hereby grants to the City all of its rights under the Lease (but not its obligations for payments thereunder) including, but not limited to, the right to make any alterations, additions, repairs, and/or improvements to the Property, and to operate the same throughout the term of the Lease at the City’s own expense, and in addition the Township hereby subleases the Property to the City under the terms of the Lease and this Second Restated Agreement. The foregoing grant and sublease are made for and in consideration of the pledge by the City to operate the Project under the terms of the Interlocal Agreement for the benefit of all residents of the City and the Township. No payment of rent or other consideration by the City shall be required by or pursuant to this Second Restated Agreement or the sublease provided for herein. The parties acknowledge that the use of the Property contemplated herein is a sublease to the City for a “governmental purpose” as allowed under the Lease, and the Corporation hereby acknowledges the same and consents thereto. Nothing contained in this Second Restated Agreement shall reduce or impede in any manner the Township’s obligations to make rental payments under the Lease, or to otherwise take all actions required under the Trust Indenture and any related documents providing for the financing of the construction of the Project by the Township. As required by I.C. 36-1-10- 11, all real estate (including the Property), structures and other improvements comprising the Project shall be held in fee simple by the Corporation until the entire Premises (as defined in the Lease) is acquired through the exercise of an option or otherwise in accordance with the terms of the Lease. The City shall have the rights of the Lessee under the Lease, a recorded copy of which is attached as Exhibit “C” and fully incorporated herein by this reference and shall be bound by its obligations with the exception of the obligation to make payments of rent thereunder. The Township shall indemnify the City from any claims relating to payment of rent under the Lease. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 5 The Corporation’s consent to the Township’s grant of rights and sublease to the City is conditioned on the Township remaining fully liable and accountable for performance under the Lease. 4. Repairs, Maintenance and Utilities. Throughout the term of this Second Restated Agreement, the City shall cause such ordinary and necessary repairs and maintenance to be made to the buildings and improvements constituting the Project and all equipment and systems located in or pertaining thereto, and shall cause such interior alterations to be made as the City shall consider necessary or advisable in its sole opinion for the proper operation of the Project, all at its own expense in accordance with the Interlocal Agreement. 5. Transfer of Property. As required by I.C. 36-1-10-11, prior to the Township and the Corporation entering into the financing of the Project, the City transferred title to the Property to the Corporation. Pursuant to Section 2.7 of the Interlocal Agreement, the parties hereby acknowledge that upon completion of the term of the Lease, in exchange for the covenants of the City contained herein, the Corporation and the Township shall take all action necessary to transfer title to the Property, along with all improvements located thereon, to the City. 6. Indemnification. The City shall indemnify and hold the Corporation and the Township harmless from and against all damages, claims, and liabilities arising from or connected with the City’s control or use of the Property, including, without limitation, any damage or injury to person or property, unless such damage or claim arises out of the gross negligence or intentional torts of the Corporation and/or the Township, or their respective employees or agents. This indemnification shall not include any matter for which the Corporation or the Township is effectively protected against by insurance. If the Corporation and/or the Township shall, without fault, become a party to litigation commenced by or against the City or relating in any way to the management or operation of the Project, then the City shall defend, indemnify, and hold the Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 6 Corporation and/or the Township harmless therefrom. The indemnification provided by this Section shall include the indemnified parties’ reasonable legal costs and fees in connection with any such claim, action or proceeding. Each party hereby releases the other from all liability for any accident, damage or injury caused to person or property; provided, however, that this release shall be effective only to the extent the injured or damaged party is insured against such injury or damage and only if this release shall not adversely affect the right of the injured or damaged party to recover under such insurance policy. 7. Insurance. The City, at its own expense, shall, during the full term of this Second Restated Agreement, keep the Property and the Project insured against physical loss or damage, however caused, with such exceptions as are ordinarily required by insurers of facilities of a similar type, with good and responsible insurance companies reasonably acceptable to the Corporation and the Township. Such insurance shall be in an amount not less than One Hundred Percent (100%) of the full replacement cost of the Property and the Project and all improvements thereon as certified by a registered architect, registered engineer or professional appraisal engineers, selected by the City and reasonably acceptable to the Corporation and the Township, on the effective date of this Second Restated Agreement. During the term of the Lease, the City shall also, at its own expense, maintain rent or rental value insurance in an amount equal to the full rental value of the Property and the Project for a period of two (2) years against physical loss or damage of the type insured against pursuant to the proceeding requirements of this Section 7. During the full term of this Second Restated Agreement, the City shall also, at its own expense, carry combined bodily injury insurance, including accidental death and Property damage with reference to the Property in an amount sufficient to adequately cover such losses with one or more good and responsible insurance companies reasonably acceptable to the Corporation and the Township. The Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 7 public liability insurance required herein may be by blanket insurance policy or policies. All of the foregoing policies applicable to the Property and/or the Project shall list the Township and the Corporation and their respective elected and appointed officials, employees and agents as additional insureds and shall require thirty (30) days’ notice to the Township and the Corporation prior to cancellation or substantial alteration of such policies. The proceeds of the insurance required herein shall be applied as set forth in Section 4 of the Lease. 8. Sublease by the City. The Township and the Corporation hereby grant the City the right, power, and authority to enter into any further sublease of the Property or the Project, or any portion thereof, but only for governmental purposes in accordance with the Lease and only with the written approval of the Corporation and the legislative body of the Township, which approval shall not be unreasonably withheld. No grant of rights or sublease by the City shall relieve the City of its obligations under this Second Restated Agreement. 9. Miscellaneous. The following additional terms shall apply to this Second Restated Agreement: (a) Captions. The captions, headings, and arrangements used in this Second Restated Agreement are for convenience only and do not in any way affect, limit, simplify, or modify the terms and provisions of this Second Restated Agreement. (b) Notices. All notices, demands, requests and other communications required or permitted hereunder shall be in writing, and shall be deemed to be delivered when (i) sent by a national overnight courier; (ii) hand delivered; or (iii) forwarded by facsimile transmission to the following: If to the Township: Clay Township of Hamilton County, Indiana Attn: Township Trustee 10701 N. College Avenue Indianapolis, IN 46280-1089 Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 8 317-846-2773 (telephone) With Copy to: Brian C. Bosma Kroger, Gardis & Regas, LLP 111 Monument Circle, Suite 900 Indianapolis, IN 46204-5125 317-692-9000 (telephone) If to the Corporation: Carmel Clay Municipal Building Corporation Attn: President 10701 N. College Avenue Indianapolis, IN 46280-1089 317-846-2773 (telephone) With Copy to: Brian C. Bosma Kroger, Gardis & Regas, LLP 111 Monument Circle, Suite 900 Indianapolis, IN 46204-5125 317-692-9000 (telephone) If to the City: City of Carmel, Indiana Office of the Mayor One Civic Square Carmel, IN 46032 317-571-2401 (telephone) With Copy to: City of Carmel, Indiana Office of Corporation Counsel One Civic Square Carmel, IN 46032 317-571-2472 (telephone) The foregoing information may be changed by notice to the other parties to this Second Restated Agreement served in accordance with this Section. Elected officials shall automatically and without notice be substituted by their successors in office. (c) Governing Law. It is intended by the parties that the laws of the State of Indiana shall govern the validity, construction, enforcement, and interpretation of this Second Restated Agreement, and that any lawsuit regarding this Second Restated Agreement shall be filed in a court of competent jurisdiction located in Hamilton County, Indiana only. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 9 (d) Entirety and Amendments. This Second Restated Agreement embodies the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements, understandings, warranties, and representations, if any, whether verbal or written, relating to the Property, or the Project, and may be amended or supplemented only by an instrument in writing executed by all parties hereto with the same degree of formality in which this Second Restated Agreement was executed. (e) Invalid Provisions. If any provision of this Second Restated Agreement is held to be illegal, invalid, or unenforceable, said provision shall be fully severable; and the Second Restated Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of the Second Restated Agreement. The remaining provisions of the Second Restated Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from the Second Restated Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Second Restated Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible which is and shall be legal, valid and enforceable. (f) Multiple Counterparts. This Second Restated Agreement may be executed in any number of identical counterparts and each such counterpart is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one agreement. (g) Parties Bound. This Second Restated Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the parties hereto, and their respective successors and assigns. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 10 (h) Further Acts. In addition to the acts and deeds recited herein and contemplated to be performed, executed, and delivered by the parties hereto, said parties agree to perform, execute, and deliver or cause to be performed, executed, and delivered any and all such further and reasonable acts, documents, and assurances as may be reasonably necessary to consummate the transaction contemplated hereby in accordance with this Second Restated Agreement. (i) Time is of the Essence; Execution. It is expressly agreed by the parties hereto that time is of the essence with respect to this Second Restated Agreement. This Second Restated Agreement shall be deemed fully executed by the parties upon the execution of this Second Restated Agreement by each of the parties indicated below. (j) No Third Party Beneficiaries. Except as otherwise specifically provided herein, nothing expressed or implied in this Second Restated Agreement is intended, or shall be construed, to confer upon or give any person, firm or corporation, other than the parties hereto, any rights or remedies under or by reason of this Second Restated Agreement. 11. Second Restated Agreement. This Second Restated Agreement amends and replaces the Original Agreement and the Restated Agreement, both of which have been superseded by this Second Restated Agreement. To the extent necessary, the terms of this Second Restated Agreement also will supersede conflicting statements and provisions in the Interlocal Agreement. 12. Effective Date. The effective date of this Second Restated Agreement shall be September 15, 2025, or such earlier or later date that the Event Space is vacated by the current manager of the Event Space. The parties signing below hereby certify and acknowledge that they have been authorized to execute this Second Restated Agreement on behalf of the entity indicated above their signature. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 11 CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA: By: _________________________ By: ____________________________ Paul Hensel, Trustee Mary Eckard, President Dated:___________________ CARMEL CLAY MUNICIPAL BUILDING CORPORATION By: _____________________________ Paul Hensel, Authorized Representative of the Corporation Dated: ______________________ CITY OF CARMEL, INDIANA BOARD OF PUBLIC WORKS AND SAFETY By: _____________________________ Laura Campbell, Presiding Officer Dated: ________________________ ATTEST: ____________________________ Jacob Quinn, Clerk of the City This document is not required to be recorded but shall be maintained by each of the parties in accordance with their normal record keeping procedures. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 3/5/2025 12 EXHIBIT “A” Fire Administration and Community Center Project Tax Parcel No. 16-09-25-16-05-004.000 Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 13 EXHIBIT “B” The Project The acquisition of property, construction, renovation, installation, and equipping of a Carmel Fire Department administrative building and fire museum, Carmel Clay Community Center and improvements related thereto located at 210 Veterans Way, Carmel, Indiana 46032. Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9 14 EXHIBIT “C” Lease Agreement [See attached] Docusign Envelope ID: 567ABE44-3163-4C3E-A0C3-AAFA1BFC7DC9