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HomeMy WebLinkAboutBPW/Parks/Monon MaintenanceMonon 7.12.03 MANAGEMENT AGREEMENT OYMMIDASTOOMW THIS MANAGEMENT AGREEMENT ("Agreement"), is entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("Owner"), and the Carmel-Clay Board of Parks and Recreation ("Manager"). WHEREAS, Owner is a municipality that owns certain real property and/or interests in real property located on and about an abandoned Moron railway corridor located in Clay Township, Hamilton County, Indiana (the "Real Estate"), as is more completely described in Exhibit A, attached hereto and made a part hereof by this reference; and WHEREAS, Manager is responsible for the operation and maintenance of certain public parks and playgrounds located in Clay Township within Hamilton County, Indiana; and WHEREAS, Owner desires to have Manager manage the Real Estate, and Manager desires to manage the Real Estate, subject to the terms,. conditions and limitations set forth in any deeds, easement agreements and other instruments of record or otherwise made known by Owner to Manager, in writing, regarding same, under and pursuant to the terms and conditions set forth in this Agreement and that certain interlocal agreement entitled "Interlocal Cooperation Agreement Between the City of Carmel, Indiana and Clay Township of Hamilton County, Indiana" ('Interlocal Agreement") entered into by and between Owner and the appropriate and authorized public officials of Clay Township, Indiana on July 26, 2002, as the same may be amended from time to time. NOW, THEREFORE, in consideration of the foregoing Recitals, and the covenants and conditions set forth hereinbelow, Owner and Manager enter into this Agreement and mutually agree as follows: ARTICLE I Incorporation of Recitals 1.1 The foregoing Recitals are hereby incorporated into and made a part of this Agreement., ARTICLE II The Real Estate; Term 2.1 Owner hereby agrees to allow Manager to manage the Real Estate and Manager hereby agrees to accept the management of the Real Estate subject to the terms, conditions and limitations set forth in any deeds, easement agreements and other instruments of record or otherwise made known to Manager by Owner, in writing, regarding same, the terms and conditions set forth in the Interlocal Agreement and/or the terms and conditions of this Agreement, for a forty (40) year term, beginning on August 1, 2003 and ending on July 31, 2043 (the "Term"), unless the Term is extended or this Agreement is sooner terminated pursuant to the IO DW+GvI"M WVncntcl'n"rrol ?bmJ.4,egR+u npa lMJIXIIJ.I1CImJAamnG"cl/ILtfUJI t provisions hereof. Notwithstanding anything to the contrary set forth herein, the Agreement shall immediately terminate at the earlier of such date on which the Interlocal. Agreement terminates or a court of competent jurisdiction issues a final and non-appealable order finding that the transfer of management responsibilities from the Owner to the Manager under and pursuant to this. Agreement is not permissible under applicable law. 2.2 The Term may be extended or reduced by written agreement of and between the parties hereto. Subject to the termination provisions contained herein, the Term of this Agreement shall automatically extend for additional successive periods of ten (10) years each beginning on the expiration date of the immediately preceding Term. Such Term extension(s) shall be upon the same terms and conditions as are contained in the Agreement for the initial Term, as the same may be amended from time to time by the parties in writing. ARTICLE III Management Fee 3.1 Owner agrees to pay Manager a management fee of Ten Dollars ($10.00) for the management of the Real Estate, which fee has been paid in advance, the receipt and sufficiency of which is hereby acknowledged. ARTICLE IV Taxes 4.1 Owner shall pay all taxes on the Real Estate that become due and payable during the Term and/or any extension(s) thereof. ARTICLE V Insurance 5.1 Manager agrees to obtain, and to keep in force throughout the Term and/or any extension thereof, at Manager's sole expense, comprehensive general liability insurance ("Insurance"), on an "occurrence" basis, against any and all claims for personal injury (including bodily injury and death) an property damage occurring on the Real Estate, which Insurance shall afford coverage, during the Term and/or any extensions thereof, in an amount of not less than Five Hundred Thousand Dollars ($500,000.00) with respect to the personal injury of any one person, in an amount of not less than One Million Dollars ($1,000,000.00) with respect to any one "occurrence" involving two or more persons, and in an amount of not less than One Hundred Thousand Dollars ($100,000.00) with respect to any one "occurrence" involving property damage. 5.2 The Insurance shall name Owner and Manager as the insured, and shall be issued by an insurer of recognized responsibility who is licensed to do business in the State of Indiana. 10`DrLn Gntl"m4?? WQv PrWK.Nam?Nm?]rolOGX9.1]CnMlamnMc.]/INNII ARTICLE VI Use of Real Estate 6.1 Manager agrees that the Real Estate will be used and managed by it only as a park, greenway and natural area for the benefit of the general public, whereon lawful recreational activities such as, but not limited to, walking, running, roller skating, bicycling and roller blading may take place under Manager's written rules and regulations and Manager's control, for the Term and any extensions thereof. 6.2 Manager agrees to submit to Owner for Owner's approval a written master plan ("Master Plan") for making such improvements to the Real Estate as are necessary for effective management and public use, for maintaining order on the Real Estate and for maintaining the Real Estate in a safe, neat and attractive state pursuant to and in compliance with all applicable laws and with all covenants, restrictions; obligations and limitations agreed to by Owner at the time of Owner's purchase or acceptance of a property interest in the Real Estate. Should Owner not approve the Master Plan within sixty (60) business days from the receipt of same by Owner, by and through its Board of Public Works and Safety, with a copy of same contemporaneously being provided to the Carmel City Attorney, the Master Plan shall be deemed approved. The Master Plan, once approved by the parties, cannot be changed, modified or superceded without the express prior written consent of Owner. Owner acknowledges that the Master Plan previously adopted by Manager for the Real Estate requires no further approval from Owner. 6.3 Manager agrees to comply with every law, order, rule and regulation of any federal, state or municipal government, court, department or agency that is applicable to the Real Estate and/or to Manager's use thereof. ARTICLE VII Maintenance of Real Estate 7.1 Manager agrees to perform such maintenance as is necessary to comply with the covenants, restrictions, obligations and limitations made or to be made by Owner at the time of Owner's purchase or acceptance of a property interest in the.. Real Estate, and to keep the Real Estate reasonably clean, sanitary, safe, neat, attractive and free from refuse at all times during the Term and any extension(s) thereof, to provide fireproof containers for the storage of refuse thereon, and to arrange for the regular pickup of such refuse, all at Manager's expense. 7.2 Manager agrees to pay or cause to be paid, without cost to Owner (except to the extent Owner funds a portion of Manager's annual budget,pursuant to the Interlocal AgreemenD, and subject to the terms and conditions hereof, all charges for utility services rendered to the Real Estate or to Manager, and all expenses, including, but not limited to, labor, power, machinery and movable equipment, mowing, operation and maintenance expenses, incurred as a result of Manager's management or use of the Real Estate. 7.3 Manager agrees to.accept the Real Estate "as is" in its present condition, and to make, at no cost to Owner (except to the extent Owner funds a portion of Manager's annual budget pursuant to the Interlocal Agreement), such improvements as are required by Manager consistent with the Master Plan and all applicable law. 7.4 Owner agrees to cooperate with Manager to the extent that Manager must seek govemment issued permits in order to fulfill its obligations and responsibilities under and pursuant to the Agreement that require the authorization and approval of Owner. 7.5 At the expiration of the Term and any extension(s) thereof, or upon the earlier termination of this Agreement as provided herein, or upon Owner's otherwise lawful re-entry on the Real Estate, Manager shall surrender the Real Estate to Owner in substantially the same condition that-the Real Estate was in at the beginning of the Term, normal wear and tear and approved improvements thereon and therein excepted. ARTICLE VIII Liens 8.1 Manager agrees that it will not create nor by its own actions provide the basis for the creation or continuance of any mechanic's, materialman's or other lien that encumbers the Real Estate. If such a lien is created which encumbers the Real Estate and is not released or bonded over by Manager within thirty (30) days of its attachment, the Owner may do.so at Manager's sole cost and expense. ARTICLE IX Owner's Right to Perform Manager's Obligations 9.1 If Manager should, at any time during the Term or any extension thereof, become in default in the performance of its obligations under this Agreement, and shall not, upon sixty (60) calendar days notice of such default from Owner, fully cure same, Owner may upon prior written notice to Manager, but shall not be required to, supply the omitted performance, and any reasonable expense incurred by Owner in so doing shall constitute an obligation of Manager which shall be payable within sixty (60) calendar days of Manager's receipt of an itemized invoice from Owner regarding same. Notwithstanding the foregoing, in the event of a bona fide emergency, Owner shall be entitled to immediately cure any default or perform any of Manager's obligations hereunder at Manager's sole cost and expense. 9.2 Owner shall have the right, at any time and without demand or notice, to enter upon the Real Estate for the purpose of determining whether or not Manager is,performing its obligations under this Agreement, to comply with its obligations under and pursuant to the terms and conditions of any deeds, easement agreements and other instruments of record as regards the Real Estate, or for any other lawful purpose. ARTICLE X Indemnity 10.1 Manager agrees to indemnify and hold Owner harmless from any and all liabilities, losses, costs, damages and expenses, including, but not limited to, attorney fees, the Owner incurs or is subject to on account of or as a ,result of any bodily injury to, or the death of, any person, or the loss or destruction of, or damage to, any property, which injury, death or damage arises, or is alleged to arise, out of Manager's possession or use of, or actions on, the Real Estate, unless such injury, death or damage is the result of Owner's negligent conduct or intentional action on the Real Estate. This obligation shall survive the termination of this Agreement. 10.2 As between Owner and Manager, any property of either shall be kept, stored or maintained on or in the Real Estate at such party's own risk and expense. In no event shall Owner store anything on or within the Real Estate that is not located thereon or therein as of the Effective Date of this Agreement, without the prior written notice to and consent from Manager, which consent shall not be unreasonably withheld or delayed. 10.3 Owner agrees to indemnify and hold Manager harmless from any and all liabilities, losses, costs, damages and expenses, including, but not limited to, attorney fees, that Manager incurs or is subject to on account of or as a result of any bodily injury to, or the death of, any person, or the loss or destruction of, or damage to, any property, which injury, death or damages arises, or is alleged to arise, out of Owner's use of, or actions on, the. Real Estate; unless such injury, death or damage is the result of Manager's negligent conduct or intentional action on the Real Estate. This obligation shall survive the termination of this Agreement. ARTICLE XI Assignment 11.1 Manager shall not assign this Agreement without the prior written consent and agreement of Owner. ARTICLE XII Default 12.1 Time is of the essence of this Agreement. io? m;,m,n oeo,=,,.wu ?o 7av 31 5 12.2 Subject to the terms and conditions hereof, if Manager shall become in default as to its obligations to pay monies due to Owner, or in respect to any of its other obligations to Owner under this Agreement, and such default shall continue for sixty (60) calendar days from the date on which written notice thereof is provided by Owner to Manager, or if Manager shall abandon or vacate the Real Estate before the end of the. Term or any extension thereof,.Owner may thereupon, and after fifteen (15) calendar days prior written notice to Manager, take possession of the Real Estate without such actions being deemed an acceptance of the surrender of this Agreement or the termination of Manager's liability hereunder. 12.3 In the event Owner takes possession of the Real Estate pursuant to paragraph 12.2 above, and so long as Owner thereafter takes all reasonable efforts to mitigate its damages hereunder, Manager shall remain liable to pay all payments to be made by Manager to Owner hereunder, less the net amount realized by Owner from such mitigation efforts after the deduction of all expenses incident to such repossession (including, but not limited to, reasonable attorney fees), or Owner may, at its sole option, terminate this Agreement immediately upon providing written notice to Manager of such termination, which termination shall relieve and excuse Manager from any further liability hereunder. Any sum owed by Manager to Owner shall be paid by Manager to Owner within sixty (60) calendar days from the date of Owner's written demand for same. 12.4 The remedies of the parties specified herein shall. be cumulative, and no one of them shall be construed as exclusive of any other, or of any other remedy provided by contract, at law or in equity. ARTICLE XIII. Quiet Enioyment 13.1 Owner agrees that, if and so long as Manager keeps and substantially performs each material term and condition herein imposed upon Manager, and if,and so long as this Agreement is not lawfully terminated, Manager shall quietly enjoy the Real Estate without hindrance or molestation by Owner or any person lawfully claiming under Owner, subject to any property rights or interests of others therein as set forth in any deed, easement agreement or other instrument of record regarding the Real Estate:and Owner's obligations thereunder, as well as to Owner's rights, obligations and duties under law. ARTICLE XIV Notices 14.1 Any notice that is or which maybe given hereunder to Owner shall be deemed to have been properly given if it is sent to Owner at the Office of the Mayor, City Hall, One Civic Square, Carmel, Indiana 46032, with a copy to the City Attorney at the same address, or to such other address as may be furnished in writing to 10` 0 M%osn=n gwom{eM1burtsLm M AM lm?olin.ixciwivmmmc:?nxam?I 6 Manager by Owner, by hand delivery or by prepaid United States certified mail, return receipt requested, and postmarked no later than the date by which such notice was to have been given hereunder. 141 Any notice that is or which may be given hereunder to Manager shall be deemed to have been properly given if it is sent to Manager at Carmel-Clay Parks Department, 1055 Third Avenue, S.W., Carmel, Indiana 46032, with a copy to the Clay Township Trustee at John W. Hensel Government Center, Suite B, 10701 North College Avenue, Indianapolis, Indiana 46280, or to such other address as may be furnished in writing to Owner by Manager, by hand delivery or by prepaid United States certified mail, return receipt requested, and postmarked no later than the date by which such notice was to have been given hereunder. ARTICLE XV Miscellaneous 15.1 If Manager remains in possession of the Real Estate after the end of the Term and/or any extension(s) thereof, but without having received a.written notice of termination from Owner at least sixty (60) calendar days prior. to the end of such Term and/or an extension thereof, Manager shall be deemed to be occupying the Real Estate by permission only, subject to all the conditions,. provisions and, terms contained herein. 15.2 No waiver of any right or power available to any party hereto upon the breach of any term or condition of this Agreement shall be deemed to be a waiver of such right or power in the event of the continuance or later occurrence of a breach of such term or condition or of some other term or condition hereof. 15.3 Notwithstanding any other provision of this Agreement, this Agreement is subject to all easements and other restrictions of record regarding the Real Estate, and to Owner's general police powers, Home Rule rights and obligations, and all of Owner's other lawful rights, obligations, privileges and powers. 15.4 This Agreement, and any extensions hereof, shall become effective and binding on the parties as of the date on which the last of the parties hereto executes same (the "Effective Date"). 15.5 This Agreement is the joint work of both parties, and shall not be strictly construed against either party but shall be interpreted in a fair and reasonable manner so as to best fulfill the intent and purpose of the parties hereto. 15.6 All headings and sections of this Agreement are inserted for convenience only and do not limit, expand or otherwise alter the meaning of any provision hereof. 15.7 The parties, and their respective officers, 'agents, partners, successors and assigns are bound to the other with respect to all the covenants, terms, warranties and obligations set forth in this Agreement. 10? Uw" Loon,mm,ray,,,,ee,mm"a.wms„em Ae,m im?ocx'r.?xcwwnamnex:vi v 31 7 15.8 The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of same, and enter into this Agreement freely, voluntarily and without any duress, undue influence or coercion. 15.9 This Agreement shall be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana, only, and agree that such court is the appropriate venue for and has jurisdiction over same. 15.10 The parties hereto represent and warrant that they are authorized to enter into this Agreement and that the person(s) executing this Agreement have the authority to bind the party which they represent. 15.11 If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 15.12 This Agreement, together with all exhibits attached hereto and all matters incorporated by reference herein, constitutes the entire agreement between Owner and Manager with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. IN WITNESS WHEREOF, this Agreement is entered into by and between the undersigned parties as follows: CITY OF CARMEL, INDIANA ("Owner") CARMEL•CLAY BOARD OF PARKS AND RECREATION ("Manager") By and through its Board of Public Works and Safety BY: BY: 0( James Brainard, Presiding Officer Date: Ma Ann urke, Member / Date: ,0 3 Lori Watsop. MeTpe- Date: ATT ST: ? A Johnson, .r ilf t. ? -Clerk for Authorized Signature SU,aVL+a I H. D1 ,1110M Printed Name and Title Date: 'q -'-'1- -©'5 iana L. Cordray, (Atv1C, Clerk-Treasurer z Sm [D' GIW ml Umvcvlkmo P? Wm AM HYJ3G .IIGInWbwnM 1I WWII 8 STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) BEFORE ME, a Notary Public in and for said County and State, personally appeared James Brainard, Mary Ann Burke and Lori Watson by me known to be the Members of the City of Carmel Board of Public Works and SMNA¢n HJo}inlionl,?FXiTrS/Fb2 Safety, and Diana L. Cordray, Clerk-Treasurer of the City of Carmel, Indiana, who acknowledged the execution of the foregoing " MANAGEMENT AGREEMENT' on behalf of the City of Carmel, Indiana. WITNESS my hand and Notarial Seal this ) day of ?k 200a. My Commission Expires: STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) e ??,, - Notary Public C. Ann 'oaul s Printed Name My County of Residence: _ N am ? +cn BEFORE ME, a Notary Public in and for said County and State, personally appeared Jae V???? , the 7T6%tC"¢ ' of Carmel-Clay Board of Parks and Recreation ("Manager"), who acknowledged the execution of the foregoing " MANAGEMENT AGREEMENT" as his/her voluntary act and deed. WITNESS my hand and Notarial Seal this ? day of 200 . My Comm 6sion Expires: D Zo! a Printed Name My County of Residence: This instrument was jointly prepared by Douglas C. Haney, Carmel City Attorney, One Civic Square, Carmel, Indiana 46032 and Debra Grisham, Park Board Attorney, 922 E. 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