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HomeMy WebLinkAboutIndiana Design Center Parking Agreement PARKING ADMINISTRATION AGREEMENT A OZ1 This Parking Management Agreement (the "Agreement is hereby entered into this day of 2011, by and between Indiana Design Center, LLC, an Indiana limited liability company "IDC and The City of Carmel, Indiana, a municipal corporation "CITY Section 1. Definitions. (a) Access Declaration shall mean that certain Access and Use Declaration between Pedcor and CRC dated February, 2010, and recorded in the Recorder's Office as Instrument Number 2010008973. (b) Affiliate shall mean: (a) any person or entity holding any direct or indirect equity, ownership, or beneficial interest in IDC; (b) any entity controlling, controlled by, or under common control with IDC; or (c) any person or entity that has any direct or indirect equity, ownership, or beneficial interest in the Design Center. (c) Allocable Costs shall mean expenses that properly are allocable by the Garage Owner under the Stacking Declaration. (d) Annual Maintenance Plan shall mean the maintenance, repair, and replacement plan with respect to the Parking Area for a particular calendar year, which plan shall: (a) contemplate maintenance, repair, and replacements sufficient to satisfy the obligations of Parking Manager under Paragraph 4 hereof; (b) include, without limitation: (i) a janitorial program; (ii) a regularly scheduled program of preventive maintenance and repair of the Garage Equipment that complies with the requirements of the applicable Warranties; (iii) annual power washing of the Parking Area; (iv) a regularly scheduled program of adequate sealing, patching, re- topping, and striping; and (v) a program for maintaining any landscaping within the Parking Area (including replacing any dead trees, shrubs, and other vegetation); and (c) reflect the maintenance, repair, and replacement of the Parking Area in conformity with the Maintenance Standard. (e) Arts District shall mean that portion of the City commonly known as Old Town and /or the Carmel Arts Design District. (f) Bankruptcy Default shall mean: (a) the adjudication of IDC as bankrupt or insolvent; (b) the making by IDC of a general assignment for the benefit of creditors; (c) the appointment of a trustee or receiver for the property of IDC, if such appointment is not vacated or set aside within 30 days from the date of such appointment; (d) the filing of an involuntary petition in bankruptcy or for reorganization or arrangement against IDC, if such involuntary petition is not vacated within 30 days after the filing thereof; (e) the filing by IDC of a voluntary petition in bankruptcy or for reorganization or arrangement; (f) the filing by IDC of an answer admitting bankruptcy or insolvency; or (g) IDC's seeking or agreeing to reorganization, arrangement, or appointment of a trustee or receiver. (g) Business Hours shall mean the hours of: (a) 8 :00 a.m. to 6:00 p.m., Monday through Friday; and (b) 8:00 a.m. to 3:00 p.m. on Saturday, local City time. (h) Casualty Insurance shall mean casualty insurance with respect to the Parking Area in an amount equal to the replacement cost thereof, the policies of which shall meet or exceed the requirements of Exhibit D; attached hereto; provided that, if, pursuant to this Agreement, IDC and CITY agree to requirements in addition to, or different from, those set forth on Exhibit D, then, to the extent that such agreed requirements conflict with the requirements of Exhibit D, such agreed requirements shall control. (i) City shall mean the City of Carmel, Indiana. 0) Claims shall mean claims, liabilities, damages, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees). (k) Commencement Date shall mean the date on which this Agreement is last signed by a party hereto. (1) Control Equipment shall mean any entrance and exit gates, ticket dispensers and /or readers, and other equipment used in the control of entrance into, exit from, and /or parking in, the Parking Area. (m) CRC shall mean the City of Carmel, Indiana Redevelopment Commission. (n) CRC Garage Portion shall mean the portion of the Parking Garage constructed by the Carmel, Indiana Redevelopment Commission. The CRC Garage Portion is the CRC Parking Garage" under the Project Agreement. (o) Cure Period, except as modified by Paragraph 9(a) hereof, 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 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. (p) Daily Reserved Spaces shall mean 45 Parking Spaces that are reserved for use exclusively by tenants of the Design Center during Business Hours, which spaces shall be within the portion of the Parking Garage delineated on Exhibit B, attached hereto (and in no event shall be in the CRC Garage Portion). (q) Design Center shall mean the two story building constructed on the Site, which building: (a) is located above the Parking Garage; (b) contains approximately 95,500 square feet of space; and (c) is intended to include: (i) retail facilities and /or offices on the first floor; and (ii) retail facilities, offices, and /or residential units on the second floor. The Design Center is the: (a) "Design Center" under the Project Agreement; and (b) "Building" under the Stacking Declaration. (r) Drives shall mean the driveways and lanes constructed on the Site, as generally depicted on Exhibit A, attached hereto. The Drives are the "Drives" under the Project Agreement. (s) Employee Standards shall mean standards for employment that: (a) are: (i) comparable in scope and content to standards and /or policies for employment that are maintained by the City; and (ii) not discriminatory, either by their terms or in the manner in which they are applied; and (b) comply with the Laws. (t) Ending Date shall mean the date on which this Agreement is terminated in accordance with its terms. (u) Event of Default shall mean: (a) a Bankruptcy Default; or (b) any "Event of Default as defined in Section 9, Subsection 9(a) hereof. (v) Garage Owner shall mean the "Garage Owner" under the Stacking Declaration. (w) Garage Parking Spaces shall mean spaces in the Parking Garage for parking motor vehicles. (x) HVAC Equipment shall mean the heating, and air conditioning systems, facilities, and equipment serving the Parking Garage. (y) Intended Use shall mean the use of the Parking Garage as a first -class parking garage that serves the Design Center and the Arts District. (z) ISBA shall mean Indiana State Board of Accounts. (aa) Laws shall mean all applicable laws, statutes, and /or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and /or decrees. (bb) Liability Insurance shall mean public liability insurance, with limits of liability initially not Tess than those set forth on Exhibit D, insuring against liability for property damage or loss, personal injury, and loss of life occurring in or on, or in connection with the use or operation of, the Parking Area, the policies of which shall: (a) meet the requirements of Exhibit D; and (b) name IDC and CITY as additional insureds; provided that, if, pursuant to this Agreement, CITY and Parking Manager agree to: (a) increased coverages; and /or (b) requirements in addition to, or different from, those set forth on Exhibit D; then, to the extent that such agreed coverage increases and /or requirements conflict with the requirements of Exhibit D, such agreed coverage increases and /or requirements shall control. (cc) Maintenance Standard shall mean the standard determining the condition in which the Parking Area shall be kept and maintained, which standard: (a) shall be at least as high as the standards for maintenance by the City of public parking garages and surface parking Tots; and (b) at the election of IDC, shall be such higher standards as would be applied by IDC and /or its affiliates for maintenance of parking garages or surface parking lots, as the case may be, serving first -class office and/or retail space. (dd) Operations Standard shall mean a standard requiring the management and operation of the Parking Area: (a) in a first -class manner, and otherwise consistent with the management and operation of first -class parking facilities in the area; (b) in the interest, and for the benefit, of the people of the City; (c) in such a manner that: (i) promotes the interests and welfare of, and fosters favorable public relations for, the Design Center and the Arts District; and (ii) promotes good relations in dealings with the public. (ee) Parking Area shall mean, collectively, the Parking Garage, the Drives, and the Surface Lot. (ff) Parking Garage shall mean: (a) one level of underground parking facilities containing approximately 116 parking spaces; (b) garage entrances and exits, ramps, and elevator lobbies; and (c) related facilities; constructed on the Site, all as generally depicted and /or described on Exhibit B. The Parking Garage is the "Parking Garage" under the Project Agreement. (gg) Parking Manager shall mean Pedcor Housing Corporation (hh) Parking Proposal shall mean a proposal submitted by the City to IDC requesting that a fee either: (a) be charged to park in the Public Parking Spaces during Business Hours; or (b) no longer be charged to park in the Public Parking Spaces during Business Hours; regardless of whether such fee applies on a daily basis or only in connection with special events occurring in the vicinity of the Site; provided that, if such a proposal requests that a fee be charged, then I shall include: (a) any applicable validation programs; and (b) a program for collecting the fee. (ii) Parking Spaces shall mean spaces in the Parking Area for parking motor vehicles. (jj) Pedcor shall mean Carmel City Center, LLC, an Indiana limited liability company. (kk) Project Agreement shall mean that certain Project Agreement executed by and between Pedcor and CRC and dated January 29, 2006. (II) Public Parking Spaces shall mean: (a) during Business Hours, all Parking Spaces other than the Daily Reserved Spaces; and (b) at all times other than Business Hours, all Parking Spaces. (mm) Recorder's Office shall mean the Office of the Hamilton County, Indiana Recorder. (nn) Records shall mean books and records with respect to the maintenance, repair, replacement, management, and operation of the Parking Area, including, without limitation: (a) copies of all contracts and agreements with respect thereto; and (b) customary supporting records and receipts. (oo) Reserved Spaces Administration Costs shall mean all costs and expenses incurred in connection with administering the Daily Reserved Spaces, including, without limitation, costs and expenses incurred in connection with: (a) ensuring that the Daily Reserved Spaces are available for use only by the tenants of the Design Center (including costs and expenses to: (i) obtain and install signage identifying the Daily Reserved Spaces; and /or (ii) remove unauthorized users from any Daily Reserved Space); and /or (b) enforcing the Rules against the tenants of the Design Center. (pp) Rules shall mean rules and regulations governing use of (including access to and from) the Parking Area, which rules and regulations shall not be discriminatory, either by their terms or in the manner in which they are applied. (qq) Services shall mean all services to be performed by IDC pursuant to this Agreement with respect to the Parking Area. (rr) Site shall mean that certain real estate described and /or depicted on Exhibit A. The Site is the "Project Site" under the Project Agreement. (ss) Stacking Declaration shall mean that certain Declaration of Stacking Covenants and Easements executed by CRC, as Declarant, and recorded in the Recorder's Office as Instrument No. 2007006405, as amended by that certain First Amendment to Declaration of Stacking Covenants and Easements executed by CRC (as Declarant) and Pedcor and recorded in the Recorder's Office as Instrument No. 2007069004. (tt) Surface Lot shall mean the surface parking lot constructed on the Site, as generally depicted on Exhibit A. The Surface Lot is the "Surface Lot" under the Project Agreement. (uu) Term shall mean from Commencement Date through December 31, 2012, and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto or unless this Agreement is otherwise terminated in accordance with the termination provisions set forth herein. Notwithstanding that some terms defined in this Section reference the Project Agreement or the Stacking Declaration, such definitions are complete for purposes of this Agreement and it is not necessary to refer to the Project Agreement or the Stacking Declaration to determine the meaning of any term defined in this Section. References to the Project .Agreement and the Stacking Declaration are intended only for purposes of clarification in the event that this Agreement and the Project Agreement and /or the Stacking Declaration are being read together. Section 2. Term. The term of this Agreement shall: (a) commence on the Commencement Date; and (b) end on the Ending Date. Section 3. Compensation. As compensation for the Services, CITY shall reimburse IDC: (a) on an hourly or fee for services basis in accordance with the fee schedule set forth as Exhibit C, attached hereto; (b) for utility charges, costs, and expenses associated with the operation of the Parking Area; provided that such charges, costs, and expenses are not paid directly by CITY; and (c) for the Allocable Costs that are allocable to the Garage Owner under the Stacking Declaration; provided that such Allocable Costs are not paid directly by CITY. Accordingly, on a monthly basis (or such other periodic basis that the parties agree is reasonable), IDC shall submit to CITY invoices for the Services and for the Allocable Costs allocable to the Garage Owner under the Declaration, and CITY shall pay for such invoices in accordance with Indiana law and standard procedures established by CITY. 4. General Obligations and Requirements. (a) General. IDC shall: (i) maintain, repair, and replace the Parking Area in accordance with the terms and conditions of this Agreement (including, without limitation, that IDC shall conform to the Maintenance Standard); and (ii) manage and operate the Parking Area for the Intended Use and in accordance with the Operations Standards. In connection with the discharge of the foregoing obligations, IDC shall: (i) hire, discharge and supervise all employees and contractors that IDC deems to be necessary or appropriate; (ii) adopt and enforce the Rules; and (iii) establish (and enforce) hours of operation for the Parking Area, which hours shall be subject to the reasonable approval of IDC and CITY. (b) Nondiscrimination. IDC represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any goods or services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment of subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and /or Vietnam era veteran status. (c) Utilities. IDC shall pay all utility charges, costs, and expenses attributable to the Parking Area that CITY does not pay directly to the applicable utility company. Upon request by CITY, IDC shall work with CITY in good faith to develop and implement an energy savings plan with respect to the use and operation of the Parking Area. (d) Compliance. In discharging its obligations under this Agreement, IDC shall comply with all: (i) Laws; (ii) requirements of all policies of insurance required by this Agreement, the Access Declaration, and /or the Stacking Declaration to be maintained (or actually maintained) by IDC; and (iii) requirements of the ISBA. (e) Employees. IDC shall develop and implement the Employee Standards. All employees and contractors hired by IDC: (i) are (and shall be considered for all purposes to be) the employees and contractors of IDC; and (ii) are not (and shall not be considered for any purpose to be) the employees or contractors of CRC or the City. Accordingly, CRC and the City shall have no obligations or liabilities with respect to such employees and contractors, who shall look exclusively to IDC to discharge all obligations and duties as their employer or principal. CITY may require: (i) background checks for any or all employees or contractors hired by IDC; (ii) random or periodic drug testing for all such employees and contractors; and (iii) IDC to terminate any employee or contractor for cause (including, without limitation, for: (A) failing a drug test; or (B) a material violation of the Employee Standards); and any contracts for employment of such employees or contractors shall include consents to the implementation of such requirements. (f) Annual Maintenance Plan. At CITY's request, IDC shall prepare and submit to CITY on an annual basis an Annual Maintenance Plan. Section 5. Maintenance Obligations. At all times during the Term, IDC shall keep and maintain (and shall provide all maintenance, repairs, and replacements necessary to keep and maintain): (a) the Parking Garage in a structurally sound condition that provides support for the Design Center and the drive lanes, driveways, and /or surface parking spaces and /or lots located on the Site; and (b) the Parking Area in: (i) good and safe order, condition, and repair; (ii) a clean and sightly condition; and (iii) compliance with all Laws. In connection with satisfying the obligations set forth in this Section, IDC shall: (a) conform to the Maintenance Standard; and (b) satisfy the maintenance, repair, and replacement obligations of the Garage Owner under the Access Declaration and /or the Stacking Declaration, to the extent that such obligations apply to the Parking Area. Section 6. Records and Accounting. (a) Records. IDC shall: (i) prepare and keep a permanent, accurate, full, and complete set of the Records; and (ii) keep the Records for at least five (5) years after the expiration of the calendar year to which they pertain; provided that, if the ISBA requires that the Records be kept for a period in excess of five (5) years, then IDC shall keep the Records for such longer period as is required by the ISBA. All the Records shall be open to inspection by CITY and the ISBA at all reasonable times until the expiration of such five year period (or such longer period as may be required by the ISBA). If there is any dispute with respect to the information disclosed by the Records, then IDC shall keep the Records with respect to the subject of such dispute until the dispute is settled. The obligation of IDC to keep Records shall survive the Ending Date. (b) Audit. CITY at any time, and from time to time, during the term may request an audit of the Records by a qualified, independent certified public accountant selected by CITY and reasonably acceptable to IDC; provided that: (i) such audit shall be conducted during regular business hours at the office where IDC maintains the Records; (ii) CITY shall pay all costs of the audit, unless the audit discloses that IDC has, in any Record: (A) understated, by 2'/z% or more, revenue obtained in connection with the Parking Area; (B) overstated, by 5% or more, any line item of less than $20,000.00; or (C) overstated, by 2 %2% or more, any line item of $20,000.00 or more; in which case IDC shall pay all costs of the audit; and (iii) the results of the audit shall be binding upon IDC and CITY. The obligations of IDC and CITY under this Subsection shall survive the Ending Date. If an audit is required by the ISBA, then, notwithstanding anything to the contrary set forth herein: (i) such audit shall be conducted in accordance with the requirements of the ISBA, including that the party performing such audit shall be determined by the ISBA; and (ii) IDC shall participate cooperatively in such audit, including that IDC promptly shall provide to the ISBA such information as the ISBA may require. Section 7. Use of Spaces. The obligations of IDC with respect to the Parking Spaces shall be as set forth in this Section. (a) Daily Reserved Spaces. IDC shall be responsible for: (i) ensuring that the Daily Reserved Spaces are available for use only by tenants of the Design Center (including, without limitation, identifying the Daily Reserved Spaces and removing unauthorized users therefrom); and (ii) enforcing the Rules against the tenants of the Design Center. As between CITY and IDC, IDC shall be responsible for payment of 50% of the Reserved Spaces Administration Costs. (b) Public Parking Spaces. IDC shall make the Public Parking Spaces available to members of the public; provided that: (i) the Public Parking Spaces shall be made available: (A) on a short -term basis; and (B) on a first -come, first served basis; and (ii) there shall be no charge to members of the public to park in the Public Parking Spaces during Business Hours, except pursuant to an approved Parking Proposal; provided that: (i) at the request of CITY, IDC shall implement a charge to park in the Public Parking Spaces during hours other than Business Hours; and (ii) prior to implementing such charge, IDC shall submit to CITY for its review and approval a plan for such implementation. At the request of IDC, IDC shall install signage informing members of the public parking in the Public Parking Spaces during Business Hours that they may park in a particular Public Parking Space for a period not to exceed three (or more, at the election of IDC) consecutive hours. IDC shall be responsible for: (i) ensuring that the Public Parking Spaces are used in accordance with the terms and conditions of this Subsection (including, without limitation, removing from the Public Parking Spaces vehicles that remain in such Public Parking Spaces for a period in excess of the permitted time limit); and (ii) enforcing the Rules. Either IDC or the CITY may submit a Parking Proposal to the other, for its review and approval, which approval shall not be unreasonably withheld. if the Parking Proposal is approved, then the party that submitted the Parking Proposal shall prepare a plan to implement the Parking Proposal, which plan shall be subject to the reasonable approval of the other party. An approved Parking Proposal, and the approved plan implementing such approved Parking Proposal, shall remain in effect until a subsequent Parking Proposal, together with a corresponding implementation plan, is approved. (c) Access. At all times when parking is permitted in the Parking Area, IDC shall cause there to: (i) remain open entrances into, and exits from, the Parking Area that provide reasonably convenient access to the Parking Spaces in which parking is permitted at such time; and (ii) be adequate signage clearly identifying, and directing vehicles to, such open entrances and exits. Section 8. Insurance. (a) Workers' Compensation. IDC shall: (i) comply with the provisions of the applicable worker's compensation laws; and (ii) insure its liability thereunder. (b) Indemnification. (i) IDC. IDC shall indemnify and hold harmless CITY from and against any and all Claims arising from or connected with: (A) IDC's maintenance, repair, replacement, operation, or use of the Parking Area (including, without limitation, Claims related to injury to, or death of, persons or loss of, or damage to, property); (8) the negligence or willful misconduct of IDC or any party acting by, under, through, or on behalf of IDC; or (C) the breach by IDC of any term or condition of this Agreement. The indemnification obligations of IDC under this Subsection shall not extend to Claims to the extent they arise from, or are connected with, the gross negligence or willful misconduct of CITY. (ii) CITY. CITY shall indemnify and hold harmless IDC from and against any and all Claims arising from or connected with: (A) CITY's maintenance, repair, replacement, operation, or use of the Parking Area (including, without limitation, Claims related to injury to, or death of, persons or loss of, or damage to, property); (B) the negligence or willful misconduct of CITY or any party acting by, under, through, or on behalf of CITY; or (C) the breach by CITY of any term or condition of this Agreement. The indemnification obligations of CITY under this Subsection shall not extend to Claims to the extent they arise from, or are connected with, the gross negligence or willful misconduct of IDC. Section 9. Default and Remedies. (a) Events of Default. It shall be an "Event of Default" if any 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 (10) days after receipt of written notice that 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 whatever actions at law or in equity 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, or enjoin any breach, by the defaulting party of any term or condition of this Agreement (including, without limitation, the right to: (A) specifically enforce any such term or condition; or (B) seek an injunction with respect to any such breach; it being acknowledged and understood by the parties that monetary damages are not an adequate remedy for: (A) the failure of either party to observe and /or perform; or (B) the breach by either party of; any term or condition of this Agreement); 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, then the defaulting party shall reimburse the non defaulting party for all such costs and expenses (including, without limitation, reasonable attorneys' fees and court costs), together with interest at the rate of 12% per annum or the highest rate allowed by applicable law. (c) Bankruptcy. If there is a Bankruptcy Default, then CITY may, in its sole discretion, terminate this Agreement by delivery of written notice to IDC at any time after CITY becomes aware of the Bankruptcy Default. (d) Termination. If there is an Event of Default by IDC (other than a Bankruptcy Default), then, CITY may terminate this Agreement by delivery of written notice to IDC at any time after CITY becomes aware of the Event of Default; provided that such termination shall be effective on the date that is ten (10) calendar days after the date of delivery of the written notice. Notwithstanding any other provision contained in the Agreement, the City may immediately terminate this Agreement, without penalty, at such time as sufficient monies are not appropriated by the City to allow it to fully meet its financial obligations hereunder. (e) 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: (i) cumulative; and (ii) 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 right or remedy conferred upon, or reserved to, the non defaulting party, 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. Section 10. Mechanic's Liens. .No Party hereto shall suffer or cause the filing of any mechanic's lien against any part of the Parking Area. If any such mechanic's lien is filed for work claimed to have been done for, or materials claimed to have been furnished to: (a) IDC or CITY; or (b) any party acting by, under, through, or on behalf of IDC or CITY; then IDC or CITY, respectively, shall: (a) cause such mechanic's lien to be discharged of record within thirty (30) days after notice of the filing by bonding or as provided or required by law; (b) provide evidence that the lien is being contested by proceedings adequate to prevent foreclosure of the lien, together with a satisfactory indemnity (in an amount equal to at least 150% of the claimed lien), to the other parties within thirty (30) days after notice of the filing thereof; and (c) indemnify and hold harmless the other parties from and against any and all Claims arising from or connected with any such mechanic's lien. All liens suffered or caused by IDC or CITY shall attach only to the interest of IDC or CITY, respectively. Nothing in this Agreement shall be deemed or construed: (a) to constitute consent to, or request of, any party for the performance of any work for, or the furnishing of any materials to, IDC or CITY; or (b) as giving IDC or CITY the right or authority to contract for, authorize, or permit the performance of any work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to the interest of any of the other parties. Section 11. Assignment. Neither CITY nor IDC shall assign this Agreement without the prior written approval of the other party; provided that: (a) without the prior written approval of IDC, CITY may assign this Agreement to another agency or instrumentality of the City; and (b) without the prior written approval of CITY, IDC may assign this Agreement to an Affiliate. Notwithstanding any assignment permitted under this Section, CITY or IDC, 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 CITY or IDC, as the case may be, from such performance; provided that, if CITY assigns this Agreement to another agency or instrumentality of the City that: (a) has full power and authority to accept an assignment of this Agreement and carry out the obligations of CITY hereunder; and (b) expressly assumes all such obligations in writing; then CITY shall be released from liability under this Agreement for all obligations to be performed after the date of such assignment and assumption. Section 12. Notice. Any notice required or permitted to be given by any party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) hand delivered to the other party; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to IDC at 770 3rd Avenue Southwest, Carmel, Indiana 46032, Facsimile: 317 587 -0340, Attn: Bruce Cordingley; and to CITY at City Hall. 1 Civic Square, Carmel, Indiana 46032, Facsimile: 317 844 -3498, Attn: Mayor, with a copy to: City Attorney, City of Carmel, City Hall, 1 Civic Square, Carmel, Indiana 46032, Facsimile:317- 571 -2484. Any party may change its address for notice from time to time by delivering notice to the other party as provided above. Section 13. Force Majeure. Notwithstanding anything to the contrary set forth herein, if any 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: (a) an act or omission of one of the other parties; or (b) any other cause that is not within the reasonable control of such party (including, without limitation, unusually inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers, but excluding a lack of financial resources); then: (a) such observation, performance, or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction is delayed or prevented; and (b) the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. Section 14. Authority. Each undersigned person executing this Agreement on behalf of IDC and CITY represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of IDC 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; (c) the execution, delivery, and performance of this Agreement have been authorized by IDC and CITY, respectively; and (d) this Agreement is the legal, valid, and binding obligation of IDC and CITY, respectively, enforceable in accordance with its terms and conditions. Section 15. Miscellaneous. Subject to Paragraph 11, this Agreement shall inure to the benefit of, and be binding upon, IDC and CITY, and their respective successors and assigns. This Agreement may be modified only by a written agreement signed by both parties. All indemnities set forth in this Agreement shall survive the expiration of the Term or the earlier termination of this Agreement. 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. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. The paragraph headings shall not be considered in any way to affect the interpretation of this Agreement, and this Agreement shall not be construed against the drafting party, it being acknowledged and agreed that each party has reviewed and understands, and has had its counsel review, this Agreement. All Exhibits to this Agreement are attached hereto and incorporated herein by reference. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same instrument. [Signature page to follow.] IN WITNESS WHEREOF, IDC and CITY have executed this Agreement as of the date set forth above. IDC: INDIANA DESIGN CENTER, LLC By: �t- 2L}46-76.,_ Printed: l7o LOiCe /y7, Ar:C Title: S>EA.t c.. I//c Aerf Date: la CITY: THE CIT F CARMEL, INDIANA By: James C. Braina Mayor /C D 2 `1 INDEX TO EXHIBITS Exhibit A Depiction and /or Description of the Site Exhibit B Depiction and /or Description of the Parking Garage and the Daily Reserved Spaces Exhibit C Fee Schedule Exhibit D Insurance Coverages DepC..t;tin c'-'\d/fr teSer pt,c) cj INC S;[e Streec fIsnlle Lino Ekond to r-arkinv ......-----r. I ''"iV iii 11 e APli vi r Y -w,: Ve' V *'VAIn:-TAI:,, .7.1::..c*:::::t. ,,M%,-.', .::,,,g' i ;Jitir /re T t -jr I 1 411.4,-.73:;;;;•17.1".:1,1:17...:;;S::;',1t,„'.72,11'7„......-T!:_:•,,%':::::::'•/4t.'4'''','44';'4''' 4.:' I..' i L A ,e ,-,,,,-;--0,y;,,:,,;.•:..7t,4,, 7, p ::::4, PZfL. FLL. 'LPL;•-:LL: p":_ y L.- L.. L ,L ,111' '''H L"':":• L:- '7'f, i''' r-/' 1; r,:-.,._.::: 2,:,:::,:o: s iii F 2:l'.1:4,,,o' r.4 1 q !t: !,!!;t: :1:...:1,.{..'!.,!, i ,T. 1 .1 ,4 .,,!Z i ;ii.,!...?:4''' ...a .1 I ':i., l 0 t iO: '‘1,',,.."',1:4^;;:.: :04,,514■';;eff':;::.;,:.'i'4'!:.,'.1i'llT.V ii 1 0 0 DUSIgn lock.Vy anti :oommo,c, I: vImis 1: manly i.1:41eflis ,:',,,,,:,:;:,,,;+,,4'..z‹,-.,,-,':.7,,•:::.:.‘'.:„:. r §gg 1,',!,!, 2:174,... f ,:!,?f ''!:i,;.;:' r 6. 0 r l'•N. "P.- 1 ,„cti i ---1. II As ,c ..r•-•;::,., .i r 9!: r ib .,„4 II La ':,:.4;,,E 4,6.q:-.,;ir-.4:..,-..-,.:,:.-:::1'.... 17„.- 2: ,!7• -.Al 1,! .21,.., r g.,14 -EL.—, 4. 47..:;-='''''''- *g 1 2 V I s (:):ff f c.‘ 4 A ir r 0 1' 1:: 1,1,,,,try lundli Liwaktas!Pfnpr,rr. 5"' 7. ,IF,: ,fe. i 1 (C1.:(1Eltf,k. P ,4" .4;2: ;e $4 t 4 't 0.5; 1 ';:i.;.4401 .4 1 i'. 1 .1 1 I !A i., J''.'' -.!--:.:-.F..)PTrf,it';'tfr" i 16S65F 16565F; 1 I .."7-, I r•Vtli:ler c 210, 2:1(2 b 1 ,,,,„,„„„,,IUM1(,,IPO, 2 jS VP i- 1 ,2 t"..../ ti...,Gr.;',... 1 rl:Anr SiirWir,(71■L'eVi 1 .i:',::,:.-.:......;. A Show,:loms from 1.400 iu 5.00C S.:. r ,,,r;•:-,,,,,,„ I I 1,4 .,:r., 27,4 ,,,t 4' p 1 I. f r E 1.1, rf 1 ..-ApAr il i g.:_:..„ i 1 1 I 4 9'. F.; r L____ i 1 4.)...,!?, s., 1-..:„...',..:,-,ii:::.:‘ 1 r 1 L_____, 1?1 .v'''' .4 ::.:1::-:,' y„ i .:7,-'''X' ,:i 7 i 2.44 L■L L.? 2 l' t: i 4 T jilik I j LYip-t-.-- t., ,_4,, .',..L-.,:47.:„-:'..1F.3-1-.2;-,, t!T.'ttT?■ Aprwl r- Aor T.,....„_ .21r 4m .0; „4 I''\ Indiazia Design C en ter i ,rIqe s L._. 9-9-09 i t A v n 1.. e. S 0 I, h w e 5 C 4 6 t..1,, )3 1 1 bep)CjiO n OACV,r re,SC1 pi er: 4-he too d/5 tt coci Viz bck; 13 Rc,sefvcJ Sp D‘.Ce. j Ii• I'7 117 1 1 I ill' I •I,1 I. 11 I' I I 1 !i I i i I 1 PARKIN 109 accr, cont pa r KInv •;K:.,:o.... l T 17-).i:'.---r; i,i il 9. :11 ..1 7 -.T.T:1;■,:?' 1 Ft r 1 r l' I 5 PUB( IC LOBBY r 0 1 1. 1,, 1 19; 1 1 4 4",„11 1 1 .1 1 1 1 1 1,, ,,,.,,...i.;.,....,L CONCIEP•Gt. DROP-OFF AND PA...Kn.:C.. pnrkh 'F'''''3. Aft.. Canct,..,5,', /S±,trIF.I., drop-,,ft s,..;,,ILE. SERVICE I:GV.,S3 \?,a, i Els E ••••••=•=:3 -.....,r7, I ll 4 1•;1 KIIAL OPFRATIONS i MAIN I ENANCF .411■K.- I A L P(., 8 1::)Rs 1 i II q I. 1 I jg bRS" f (i -1( 1 11 ii 7: i „...p-i 11 2$6 SF 11 )0r9 1 7 .:77. (1 ii,A ri A 1 i -40 1 1 I 11 Indiana Desigh Center 2-5-10 bRS .b0:ii3 ResertitJ Seace5 EXHIBIT C Fee Schedule ITEM MAINTENANCE UTILITY CONTRACTS CITY SHARE OF COSTS 1 Elevators Telephone Service Contracts 3,000.00 2 Emergency Call Boxes 5 Separate Phone Lines 3,000.00 3 Electric 7,000.00 4 Fire /Sprinkler Service Contract 3,000.00 5 Elevator Service Contract 1,800.00 6 Maintenance Contract for Security Cameras 1,000.00 7 Exterminator Contract 2,000.00 8 Glycol Ramp Heating System Maintenance Contract 5,000.00 9 Share of City Water Bill 1,200.00 10 Garage Door Service Contract 1,200.00 11 Misc. Costs 2,000.00 30,200.00 Per Month 2,516.67 STREET DEPARTMENT TASKS Water Snow Removal Light Bulbs Cleaning Supplies Cleaning of Garage Elevator Lobbies Parking Spaces Snow Removal Cleaning of Surface Lots Trash Removal for Garage Area Annual Cleaning of Garage Floor in April of Each Year Annual Cleaning of Garage Floor in April of Each Year Arrange City Police Observation Coordinate Security Cameras w/ Pedcor Security City Landscape Maintenance C ®IUD Rl"��i,.F: !GATED DATE (MM /DD/YY) I,, F PROPERTY INSURANCE- 09 /01/2011 PRODUCER (317)814 8244 FAX (317)814 8245 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION United Insurance Agencies ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 220 S. Walnut Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Muncie, IN 47305 COMPANIES AFFORDING COVERAGE COMPANY Hanover Insuarnce Company (A XIV) Attn Kurt McKinley Ext 4900 A INSURED PANY Indiana Design Center, LLC COMB Carmel Redevelopment Commission One Pedcor Square COMPANY 770 3rd Avenue Carmel, IN 46032 COMPANY COVERAGES: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION COVERED PROPERTY LIMITS LTR DATE (MM /DD/YY) DATE (MM /DD/YY) X PROPERTY X BUILDING 18,500,000 CAUSES OF LOSS Z7W92 55 51500 09/01/2011 09/01/2012 PERSONAL PROPERTY BASIC X BUSINESS INCOME ALS -12 mos BROAD X EXTRA EXPENSE A X SPECIAL BLANKET BUILDING EARTHQUAKE BLANKET PERS PROP FLOOD BLANKET BLDG PP X Agreed Amount DEDUCTIBLE: $5,000 X Equipment included X Replacement Cost Breakdown INLAND MARINE TYPE OF POLICY CAUSES OF LOSS NAMED PERILS OTHER CRIME TYPE OF POLICY BOILER MACHINERY OTHER LOCATION OF PREMISES /DESCRIPTION OF PROPERTY _ocation Address: 200 S. Rangeline Road, Carmel, IN 46032 Strip center with retail shops, with two stories plus underground parking. SPECIAL CONDITIONS /OTHER COVERAGES *10 day notice of cancellation for nonpayment of premium Flagstar Bank, FSB, Its Successors and Assigns is listed as Mortgagee Loss Payee. Hail Stop: E203 -1, 5151 Corporate Drive, Troy MI 48098 CERTIFICATE: HOLDER CANCELLATION wsb SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE Flagstar Bank, FSB EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30' DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Its Successors and Assigns Mails top E203-1 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 5151 Corporate Drive OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. Troy, MI 48098 AUTHORIZED REPRESENTATIVE Kurt McKinley /ADW ACORD 24:(1195) F ;OACORD:CORPORATION 1995 ACORD )M CERTIFICATE OF LIABILITY INSURANCE 09/01/2011 PRODUCER (317)814 -8244 FAX (317)814 -8245 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION United Insurance Agencies ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 220 S Wal nut Street HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Muncie, IN 47305 Attn: Kurt McKinley INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA Hanover Insurance Company Indiana Design Center, LLC INSURER B. One Pedcor Square INSURER C 770 3rd Avenue INSURER D Carmel IN 46032 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIF MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIO POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION I TR INRRC DATE IMM /DD/YYl BATE IMM /nntrn LIMITS GENERAL LIABILITY Z7W925551500 09/01/2011 09/01/2012 EACH OCCURRENCE 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED 100,000 CLAIMS MADE X OCCUR MED EXP (Any one person) 5,000 A PERSONAL ADV INJURY 1,000,000 GENERAL AGGREGATE 3,000,000 GE 'L AGGREGATE LIMIT APPLIES PER: PRODUCTS COMP /OP AGG i ncl uded X POLICY PRO- JECT LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) 1,000,000 ALL OWNED AUTOS Z7W925551500 09/01/2011 09/01/2012 BODILY INJURY SCHEDULED AUTOS (Per person) A X HIRED AUTOS BODILY INJURY X NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY EA ACCIDENT ANY AUTO EA OTHER THAN ACC AUTO ONLY. AGG EXCESS /UMBRELLA LIABILITY U7W925943800 09/01/2011 09/01/2012 EACH OCCURRENCE 4,000,000 X OCCUR CLAIMS MADE AGGREGATE 4,000,000 A DEDUCTIBLE RETENTION WORKERS COMPENSATION AND I TORY I M TS IDFR EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER /EXECUTIVE E.L EACH ACCIDENT OFFICER /MEMBER EXCLUDED? E L DISEASE EA EMPLOYEE If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE POLICY LIMIT OTHER DESCRIPTION OF OPERATIONS LOCATIONS VEHICLES EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS Carmel Redevelopment Commission is named as an Additional Insured for liability coverages. °10 day notice of cancellation for nonpayment of premium. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL Carmel Redevelopment Commission 30'' DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 30 W. Main Street BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY Suite 220 OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. Carmel IN 46032 AUTHORIZED REPRESENTATIVE Kurt McKinley /ADW ACORD 25 (2001/08) ©ACORD CORPORATION 1988 ACORD CERTIFICATE OF LIABILITY INSURANCE 09/01/2011 PRODUCER (317)814 -8244 FAX (317)814 -8245 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Uni ted Insurance Agenci es ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 220 S Wal nut Street HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Muncie, IN 47305 Attn: Kurt McKinley INSURERS AFFORDING COVERAGE NAIC INSURED INSURER Hanover Insurance Company Indiana Design Center, LLC INSURER B' One Pedcor Square INSURER C: 770 3rd Avenue INSURER Carmel IN 46032 INSURER E. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR INSRC DATF IMMIDDlYYI DATE IMM /DD/YY) LIMITS GENERAL LIABILITY Z7W925551500 09/01/2011 09/01/2012 EACH OCCURRENCE 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED 100 000 PRFMISFS (Fa orauPnre) CLAIMS MADE X OCCUR MED EXP (Any one person) 5,000 A PERSONAL 8 ADV INJURY 1,000,000 GENERAL AGGREGATE 3,000,000 GE 'L AGGREGATE LIMIT APPLIES PER PRODUCTS COMP /OP AGG included X POLICY PRO- PRO- LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) 1,000,000 ALL OWNED AUTOS Z7W925551500 09/01 /2011 09/01/2012 BODILY INJURY SCHEDULED AUTOS (Per person) A X HIRED AUTOS BODILY INJURY X NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY EA ACCIDENT ANY AUTO OTHER THAN EA ACC AUTO ONLY: AGG EXCESS /UMBRELLA LIABILITY U7W925943800 09/01/2011 09/01/2012 EACH OCCURRENCE 4,000,000 X I OCCUR CLAIMS MADE AGGREGATE 4,000,000 A DEDUCTIBLE RETENTION T WORKERS COMPENSATION AND 1 TORY IMITS PR EMPLOYERS' LIABILITY ANY PROPRIETOR /PARTNER /EXECUTIVE E L EACH ACCIDENT OFFICER /MEMBER EXCLUDED? E.L DISEASE EA EMPLOYEE It yes, describe under SPECIAL PROVISIONS below E.L DISEASE POLICY LIMIT OTHER DESCRIPTION OF OPERATIONS LOCATIONS /VEHICLES EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS :ity of Carmel is named as Additional Insured for liability coverages. *10 day notice of cancellation for nonpayment of premium. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Ci ty of Carmel BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY One Civic Square OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. Carmel IN 46032 AUTHORIZED REPRESENTATIVE i 2 Kurt McKinley /ADW '`'Pc 1 ACORD 25 (2001/08) ©ACORD CORPORATION 1988