HomeMy WebLinkAboutD-2100-12 $195,000,000 CRC Refinance As AmendedSponsors: Councilors Sharp and Snyder
ORDINANCE D- 2100 -12
AS AMENDED
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA,
APPROVING A LEASE BETWEEN THE CITY OF CARMEL REDEVELOPMENT
AUTHORITY AND THE CITY OF CARMEL REDEVELOPMENT COMMISSION AND
TAKING OTHER ACTIONS RELATED THERETO
WHEREAS, the City of Carmel Redevelopment Authority (the "Authority ") has been
created pursuant to Indiana Code 36 -7 -14.5 as a separate body corporate and politic, and as an
instrumentality of the City of Carmel, Indiana (the "City ") to finance local public improvements for
lease to the City of Carmel Redevelopment Commission (the "Commission "), as the governing
body of the City of Carmel Redevelopment District (the "District "); and
WHEREAS, the Authority has adopted, or is expected to adopt, a resolution indicating its
intent to issue one or more series of its lease rental revenue bonds, all or any portion of which may
be taxable or tax - exempt for federal income tax purposes, in the maximum original principal
amount of $195,000,000 (collectively, the "Bonds "), to provide funds for the purposes of: (a)
financing the acquisition by the Authority from the City of the real property described in Exhibit B
to the Lease (as hereinafter defined) (the "Real Property "), and the use by the City of the proceeds
of such sale to (i) refund, or cause to be refunded, all of the outstanding obligations of the City
and /or the District, listed on Exhibit A hereto and made a part hereof, and pay all costs or expenses
incurred in connection therewith (clause (a)(i), collectively, the "Refunding Project "), and (ii)
finance or reimburse the cost of the construction, renovation, improvement and/or equipping of the
projects identified on Exhibit B hereto and made a part hereof (clause (a)(ii), collectively, the "City
Center Completion Projects "); (b) funding a debt service reserve fund or paying the premiums for
one or more municipal bond insurance policies and /or one or more debt service reserve fund credit
facilities, if any; (c) paying capitalized interest on the Bonds, if any; and (d) paying all costs of
issuance of the Bonds (clauses (a) through and including (d), collectively, the "Project "); and
WHEREAS, the Authority and the Commission have adopted, or are expected to adopt,
resolutions approving a proposed Lease Agreement in the form presented at this meeting (the
"Lease ") for the purpose of paying the principal and interest on the Bonds issued pursuant to
Indiana Code 36 -7 -14.5 to finance the Project; and
WHEREAS, the annual rentals (the "Lease Rentals ") payable by the Commission under the
Lease will be pledged by the Authority to pay debt service on the Bonds; and
WHEREAS, the Commission reasonably expects to pay the Lease Rentals during the term
of the Lease from tax increment revenues or other legally available revenues of the Commission,
and the payment of the Lease Rentals will be secured by a back -up pledge of the revenues derived
by the Commission from the levy of a special benefits tax pursuant to Indiana Code 36- 7- 14 -27; and
WHEREAS, the Commission scheduled a public hearing regarding the Lease pursuant to
Indiana Code 36 -7 -14 -25.2 and Section 147(f) of the Internal Revenue Code of 1986, as amended
and in effect on the date hereof, and published a notice of such public hearing pursuant to Indiana
VERSION A - 11/19/12
Code 5 -3 -1, and said public hearing has been held and all interested parties were provided the
opportunity to be heard at the hearing; and
WHEREAS, pursuant to Indiana Code 36- 7- 14.5 -14 and Indiana Code 36 -7 -14 -25.2, the
Commission has adopted a resolution finding that the lease rental payments to be paid by the
Commission to the Authority pursuant to the Lease are fair and reasonable, and that the terms of the
Lease are based upon the value of the Leased Premises (as defined in the Lease) and the use of the
Project throughout the term of the Lease will serve the public purpose of the City and is in the best
interests of its residents; and
WHEREAS, the Common Council of the City (the "Common Council ") desires to approve
the Lease pursuant to Indiana Code 36 -7 -14 -25.2, which provides that any lease approved by a
resolution of the Commission must be approved by an ordinance of the fiscal body of the unit; and
WHEREAS, the proceeds of the sale of a portion of the Real Property to the Authority (the
"Sale Proceeds ") have not been included in the existing budget for the City, and the City now
desires to appropriate the Sale Proceeds for the purpose of being applied to the payment of the costs
of the Project; and
WHEREAS, notice of a hearing on said appropriation has been duly given by publication as
required by law, and the hearing on said appropriation has been held, at which all taxpayers had an
opportunity to appear and express their views as to such appropriation;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY
OF CARMEL, INDIANA, as follows:
Section 1. Approval of Lease and Bonds. The Common Council hereby approves the
issuance of the Bonds and the execution and delivery of the Lease, as approved by the Commission,
pursuant to Indiana Code 36 -7 -14 -25.2, including, if necessary, the levy by the Commission of a
special benefits tax pursuant to Indiana Code 36- 7 -14 -27 during the term of the Lease to provide
necessary funds from which to pay the Lease Rentals under the Lease, all upon the following
conditions: (a) the maximum aggregate original principal amount of the Bonds shall not exceed
$195,000,000; (b) the maximum annual lease rental payment during the term of the Lease shall not
exceed $21,500,000; (c) the maximum interest rate on the Bonds shall not exceed five percent
(5.00 %) per annum; (d) the Bonds may be subject to redemption prior to maturity on any date not
earlier than five (5) years following the date of issuance of the Bonds, with such specific dates and
redemption terms determined at the time of the sale of the Bonds and approved by the Authority in
the purchase agreement for the Bonds, all upon the advice of the financial advisor to the Authority;
(e) the awarding of all construction bids for the various portions of the City Center Completion
Projects shall be subject to the procedures set forth in Exhibit C hereto; (f) any change orders for the
City Center Completion Projects that exceed $49,999 shall be subject to the procedures set forth in
Exhibit C hereto; and (g) the Common Council shall approve the use of any surplus proceeds of the
Bonds remaining after completion of the Project.
Section 2. Sale of Right -of -Way; Appropriation of Sale Proceeds. The Common
Council hereby authorizes the sale to the Authority of the existing Real Property which will
comprise or be included in the Leased Premises under the Lease, for a price sufficient to cover the
costs of the Project, but in any event not to exceed $195,000,000. The Mayor, Clerk- Treasurer and
other officers of the City are hereby authorized to take such actions and execute such documents as
VERSION A - 11/19/12
2
may be necessary to effectuate such sale and transfer. There is hereby appropriated a sum not to
exceed $195,000,000 out of the Sale Proceeds, together with all investment earnings thereon, for the
purpose of providing funds of the City to be applied to the costs of the Project. Such appropriation
shall be in addition to all appropriations provided for in the existing budget and shall continue in
effect until the completion of the Project. The Mayor and the Clerk- Treasurer are hereby authorized
to take all such actions and execute all such instruments as are necessary or desirable to effectuate
this appropriation, including the filing of a report of this appropriation with the Indiana Department
of Local Government Finance.
Section 3. Authorization of Other Actions. Each of the Mayor, any member of the
Common Council and the Clerk- Treasurer, and any other officer, employee or agent of the City is
hereby authorized and directed, for and on behalf of the City, to execute and deliver any contract,
deed, agreement, certificate, instrument or other document and to take any action as such person
determines to be necessary or appropriate to accomplish the purposes of this Ordinance, such
determination to be conclusively evidenced by such person's execution of such contract, deed,
agreement, certificate, instrument or other document or such person's taking of such action.
Section 4. Severability. If any part of this Ordinance shall be adjudged to be invalid by
a court of proper jurisdiction, it shall be conclusively presumed that the Common Council would
have passed the remainder of this Ordinance without such invalid part.
Section 5. Repeal of Conflicting Ordinances. All ordinances, resolutions and orders, or
parts thereof, in conflict with the provisions of this Ordinance, are, to the extent of such conflict,
hereby repealed.
Section 6. Effectiveness. This Ordinance shall be in full force and effect from and after
its adoption by the Common Council and upon compliance with the procedures required by law.
VERSION A - 11/19/12
■
3
PASSED by the Common Council of the City of Carmel, this I q44" day of N 64)-e1v,n.Qgh , 2012,
by a vote of 7 ayes and 0 nays.
MMON COUNCIL OF THE CITY OF CARMEL, IND
residing Officer
Richard L. S arp, Pre dent Pro Tempore Carol Schleif
Ronald E. Carter
W. Eric Sei risticker
ATTEST: �aD a(fL \� is„
Yt,
Diana L. Cordray, IAMC, Clerk- Tre'i,irer
Presented by me to the Mayor of the City of Carmel, Indiana 't
2012, at 7: Lt ---P.m. D
is riday of ,
/0
Diana L. Cordray, IAMC, Clerk- Treasur
Approved by me, Mayor of the City of Camel, Indiana, this t day of (6A-,
2012, at 1: N5 P .M.
ATTEST:
L0 LC
Jams Brainard, Mayor
Diana L. Cordray, IAMC, Clerk- Treasurer
Prepared by:
Bruce D. Donaldson
Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
VERSION A - 11/19/12
4
EXHIBIT A
LIST OF OUTSTANDING OBLIGATIONS OF THE CITY AND /OR THE DISTRICT TO
BE REFUNDED
1. Installment Purchase Contracts securing loans under Master Loan Program Agreement
with Regions Bank dated December 30, 2008 [Advance Date: January 7, 2009]
2. Installment Purchase Contracts securing loans under Master Loan Program Agreement
with Regions Bank dated December 30, 2008 [Advance Date: May 22, 2009]
3. Installment Purchase Contracts securing loans under Master Loan Program Agreement
with Mercantile Bank dated August 31, 2009
4. City of Cannel, Indiana, Redevelopment District Certificates of Participation, Series
2010A, dated January 21, 2010
5. City of Carmel, Indiana, Redevelopment District Certificates of Participation, Series
2010B dated January 21, 2010
6. Installment Purchase Contracts securing loans under Master Loan Program Agreement
with The National Bank of Indianapolis dated January 29, 2010
7. Installment Purchase Contract(s) securing loan(s) under agreement with United Fidelity
Bank dated June 10, 2010
8. Installment Purchase Contracts under Loan Program Agreement with Regions Bank
dated July 22, 2010
9. Grant Agreement securing line of credit with Star Financial Bank dated November 17,
2011
10. Grant Agreement securing line of credit with Fowler State Bank dated November 8,
2011
11. Grant Agreement securing line of credit with CIBM Bank dated November 30, 2011
12. Amended and Restated Grant Agreement securing line of credit with Mercantile Bank
dated January 18, 2012
13. Grant Agreement securing line of credit with BMO Harris Bank N.A. dated February 17,
2012
14. Amended and Restated Grant Agreement securing loan from BMO Harris Bank N.A.
dated September 30, 2011
15. Parking and Grant Agreement securing loan from Lake City Bank dated December 28,
2010
VERSION A - 11/19/12
A -1
16. Tri -Party Agreement regarding loan from Community Bank dated September 10, 2009
17. Installment Purchase Agreement (Primary) securing loan(s) under agreement with BMO
Harris Bank N.A. dated December 7, 2011
18. Replacement Land Sale Contract, dated February 17, 2010, between the City of Carmel
Redevelopment Commission and 251, LLC
19. Land Sale Contract, dated March 2, 2011, between the City of Carmel Redevelopment
Commission and BobbyJohn, LLC
20. Land Sale Contract, dated November 10, 2009, between the City of Carmel
Redevelopment Commission and Old Town Properties, LLC
21. City of Carmel, Indiana Redevelopment District Taxable Tax Increment Revenue Bonds
of 2008, dated July 15, 2008
VERSION A - 11/19/12
A -2
EXHIBIT B
DESCRIPTION OF CITY CENTER COMPLETION PROJECTS
The City Center Completion Projects consist of improvements to the development in the
City of Carmel, Indiana, commonly known as "City Center" and located within the boundaries of
the City Center Redevelopment Area created by the Commission, including road and street
improvements, parking facilities and structures, lighting, utilities, landscaping, streetscape
improvements, sidewalk improvements, and related land acquisition and environmental remediation
costs.
VERSION A - 11/19/12
B -1
EXHIBIT C
CONSTRUCTION BIDDING AND CHANGE ORDER PROCEDURES
1. Whenever the Board of Public Works of the City (i) awards a construction bidding
contract relating to the City Center Completion Projects, or (ii) approves a change order relating to
the City Center Completion Projects that exceeds $49,999 (each, a "BPW Decision "), the Clerk -
Treasurer of the City shall immediately provide notice of the BPW Decision to all members of the
Common Council.
2. Subject to Section 3 below, the Common Council shall have the right to review and
approve, reject or modify the BPW Decision.
3. If the Common Council has not rendered a decision under Section 2 above within
five (5) business days of receiving the notice provided under Section 1 above, the BPW Decision
shall be deemed approved by the Common Council.
VERSION A - 11/19/12
C -1
INDS01 BJB 1340943v10
Barnes & Thornburg LLP
Draft of 11/06/12
LEASE AGREEMENT
between
CITY OF CARMEL REDEVELOPMENT AUTHORITY
LESSOR
and
CITY OF CARMEL REDEVELOPMENT COMMISSION
LESSEE
Dated as of , 2012
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and dated as of this day of , 2012, by
and between the CITY OF CARMEL REDEVELOPMENT AUTHORITY, as lessor (the
"Lessor "), a separate body corporate and politic organized and existing under Indiana Code 36 -7-
14.5 as an instrumentality of the City of Carmel, Indiana (the "City "), and the CITY OF
CARMEL REDEVELOPMENT COMMISSION, as lessee (the "Lessee "), the governing body
of the City of Carmel Department of Redevelopment acting for and on behalf of the City.
WITNESSETH:
WHEREAS, the City has created the Lessor under and in pursuance of the provisions of
Indiana Code 36 -7 -14, Indiana Code 36 -7 -14.5 and Indiana Code 36 -7 -25 (collectively, the
"Act "), for the purpose of financing, constructing, acquiring and leasing to the Lessee certain
local public improvements; and
WHEREAS, the City has created the Lessee to undertake redevelopment and economic
development in the City in accordance with the Act; and
WHEREAS, in order to foster economic development in the City, the Lessor and the
Lessee desire to provide for the acquisition and construction of the projects set forth on Exhibit
A hereto (collectively, the "Projects "); and
WHEREAS, the Act authorizes the Lessor to issue bonds for the purpose of obtaining
money to pay the cost of acquiring property or constructing, improving, reconstructing or
renovating local public improvements; and
WHEREAS, the costs of the refinancing, acquisition and construction of the Projects will
be paid from proceeds of one or more series of bonds to be issued by the Lessor in a maximum
original principal amount not to exceed $195,000,000 (collectively, the "Bonds "); and
WHEREAS, the annual rentals to be paid under this Lease by the Lessee will be pledged
by the Lessor to pay debt service on and other necessary incidental expenses of the Lessor
relating to the Bonds to be issued by the Lessor to finance the Projects; and
WHEREAS, pursuant to Indiana Code 36- 7- 14 -27, the Lessee has the authority to levy a
special benefits tax upon all property in the City of Carmel Redevelopment District (the
"District ") for the purpose of providing funds to pay the Lessee's debt service or lease rental
obligations; and
WHEREAS, the Lessor will acquire interests in the real estate described in Exhibit B
(such real estate, together with any roads or other improvements that, on the date of acquisition
thereof, are located thereon, collectively, the "Real Estate" or the "Leased Premises "), and such
interests shall be for a term no less than the term of this Lease; and
WHEREAS, the total cost of the Projects, including, but not limited to, costs of
refinancing, acquisition, construction, improvements, architects' and engineers' fees,
2
consultants' services, legal and financing expenses, certain expenses of operation of the Lessor
during construction, interest during construction, debt service reserves, premiums for credit
facilities or other credit enhancements (if any) and repayment of any funds advanced by the City
or Lessee to meet preliminary expenses necessary to be paid prior to the issuance of bonds by the
Lessor, is estimated to be not greater than One Hundred Ninety -Five Million Dollars
($195,000,000); and
WHEREAS, the Lessee has determined, after a public hearing held pursuant to the Act
after notice given pursuant to Indiana Code 5 -3 -1, that the lease rentals provided for in this Lease
are fair and reasonable, that the execution of this Lease is necessary and that the service provided
by the Projects will serve the public purpose of the City and is in the best interests of its
residents, and the Common Council has by ordinance approved this Lease, and the ordinance has
been entered in the official records of the Common Council; and
WHEREAS, the Lessor has determined that the lease rentals provided for in this Lease
are fair and reasonable, that the execution of this Lease is necessary and that the service provided
by the Projects will serve the public purpose of the City and is in the best interests of its
residents, and the Lessor has duly authorized the execution of this Lease by resolution, and the
resolution has been entered in the official records of the Lessor.
THIS AGREEMENT WITNESSETH THAT:
1. Acquisition of Real Estate. The date by which the Lessor acquires the Real Estate
and the Leased Premises are available for use shall be endorsed on this Lease at the end hereof
by the parties to this Agreement, and such endorsement shall be recorded as an addendum to this
Lease substantially in the form of Exhibit C attached hereto.
2. Premises, Term and Warranty. The Lessor does hereby lease, demise and let to
Lessee all of the Lessor's right, title and interests in and to the Leased Premises.
TO HAVE AND TO HOLD the Leased Premises with all rights, privileges, easements
and appurtenances thereunto belonging, unto the Lessee, beginning on the date on which the
Lessee begins to make lease rental payments hereunder and ending on the day prior to a date not
more than twenty -five (25) years thereafter. However, the term of this Lease will terminate at
the earlier of (a) the exercise by the Lessee of the option to purchase the Leased Premises
pursuant to Section 12 and the payment of the option price, or (b) the payment or defeasance of
all bonds issued (i) to finance the cost of the Leased Premises, (ii) to refund all or a portion of
such bonds, (iii) to refund all or a portion of such refunding bonds, or (iv) to improve the Leased
Premises; provided that no bonds or other obligations of the Lessor issued to finance the Leased
Premises remain outstanding at the time of such payment or defeasance. The Lessor hereby
represents that it is possessed of, or will acquire, the Leased Premises and the Lessor warrants
and will defend the Leased Premises against all claims whatsoever not suffered or caused by the
acts or omissions of the Lessee or its assigns.
Notwithstanding the foregoing, the Leased Premises may be amended to add additional
property to the Leased Premises or remove any portion of the Leased Premises, provided
however, following such amendment, the rental payable under this Lease shall be based on the
3
value of the portion of the Leased Premises which is available for use, and the rental payments
due under this Lease shall be in amounts sufficient to pay when due all principal of and interest
on all outstanding Bonds.
3. Lease.Rental. (a) Fixed Rental Payments. The Lessee agrees to pay fixed
annual rental for the use and occupancy of the Leased Premises at a maximum annual rate of
Twenty -One Million Five Hundred Thousand Dollars ($21,500,000) (the "Fixed Annual
Rentals "). The Fixed Annual Rentals shall be payable in advance in semi - annual installments on
the dates set forth in Section 4 hereof, and shall be based on the value of the Leased Premises at
the time such semi- annual installment is made. After the sale of the Bonds issued to finance the
acquisition of the Leased Premises, the semi - annual installment of the Fixed Annual Rentals for
the Leased Premises for each six -month period ending on each January 15 or July 15 (each a
"Semi- annual Period ") shall be reduced to an amount equal to (a) the multiple of $1,000 next
higher than the sum of principal and interest due on the Bonds in such Semi - annual Period, plus
(b) an additional Five Thousand Dollars ($5,000). Payment of the Fixed Annual Rentals shall
commence on the later of (i) the date the Real Estate is acquired by the Lessor, or (ii) a date to be
determined at the time of the sale of the Bonds, but no earlier than January 15, 2013. Such date
and the amount of each semi - annual installment of such reduced Fixed Annual Rentals shall be
endorsed on this Lease, substantially in the form of Exhibit C attached hereto, by the parties
hereto at the time of issuance of the Bonds and recorded as an addendum. If more than one
series of Bonds is issued, the addendum shall be executed and recorded upon issuance of the
final series of Bonds.
(b) Additional Rental Payments. (i) The Lessee shall pay as further rental in
addition to the rentals paid under Section 3(a) for the Leased Premises (such further rentals
described in this Section 3(b), the "Additional Rentals ") the amount of all taxes and assessments
levied against or on account of the Leased Premises or the receipt of lease rental payments and
the amount required to reimburse the Lessor for any insurance payments made by it under
Section 7. Any and all such payments shall be made and satisfactory evidence of such payments
in the form of receipts shall be furnished to the Lessor by the Lessee, at least three (3) days
before the last day upon which such payments must be paid to avoid delinquency. If the Lessee
shall in good faith desire to contest the validity of any such tax or assessment, the Lessee shall so
notify the Lessor and shall furnish bond with surety to the approval of the Lessor conditioned for
the payment of the charges so desired to be contested and all damages or loss resulting to the
Lessor from the nonpayment thereof when due, the Lessee shall not be obligated to pay the
contested amounts until such contests shall have been determined.
(ii) To the extent applicable to any series of Bonds, the Lessee shall also pay
as Additional Rentals the amount calculated by or for the Lessor as the amount required to be
rebated, or paid as a penalty, to the United States of America under Section 148(0 of the Internal
Revenue Code of 1986, as amended and in effect on the date of issue of the Bonds ( "Code "),
after taking into account other available moneys, to prevent any series of Bonds from becoming
arbitrage obligations under Section 148 of the Code, if the interest of such series of Bonds is
excludable from gross income under the Code for federal income tax purposes.
(iii) The Lessee may by resolution pay Additional Rentals to enable the Lessor
to redeem or purchase Bonds prior to maturity. Rental payments due under this Section 3 shall be
4
reduced to the extent such payments are allocable to the Bonds redeemed or purchased by the
Lessor with such Additional Rentals. The Lessee shall be considered as having an ownership
interest in the Leased Premises valued at an amount equal to the amount of the Additional
Rentals paid pursuant to this subsection (b)(iii).
(iv) In the event that the Trustee (as defined below) gives notice to the Lessee,
pursuant to the terms of the Indenture (as defined below), that the amount on deposit or credited
to the Debt Service Reserve Fund (as defined in the Indenture) is less than the Reserve
Requirement (as defined in the Indenture), the Lessee shall levy the special benefits tax in an
amount necessary to provide a sufficient amount of Special Tax Revenues in order to pay as
Additional Rentals the amount required to restore the amount on deposit or credited to the Debt
Service Reserve Fund to an amount equal to the Reserve Requirement.
(c) Source of Payment of Rentals. The Fixed Annual Rentals and the
Additional Rentals shall be payable solely from the revenues derived from the special benefits
tax levied by the Lessee pursuant to Indiana Code 36- 7 -14 -27 (the "Special Tax Revenues ").
The Lessee may pay the Fixed Annual Rentals and the Additional Rentals or any other amounts
due hereunder from any other revenues legally available to the Lessee, including, but not limited
to, incremental property tax revenues received by the Lessee from one or more allocation areas
in the District pursuant to Indiana Code 36- 7- 14 -39; provided, however, the Lessee shall be
under no obligation to pay any Fixed Annual Rentals or Additional Rentals or any other amounts
due hereunder from any moneys or properties of the Lessee, except the Special Tax Revenues
received by the Lessee.
4. Payment of Rentals. (a) The first lease rental payment shall be due on the later of
(i) the date the Real Estate is acquired by the Lessor, or (ii) a date to be determined at the time of
the sale of the Bonds, but no earlier than January 15, 2013, as set forth in the addendum referred
to in Section 3(a) above. If the first rental payment date on the Leased Premises is on a date
which is other than January 15 or July 15, the first rental payment shall be for an amount
calculated at the rate for that Semi - annual Period from the date of payment to the next January
15 or July 15. Thereafter, rentals on the Leased Premises shall be payable in advance in semi-
annual installments on January 15 and July 15 of each year. The last semi - annual rent payment
on the Leased Premises due shall be adjusted to provide for a rental payment at the rate specified
above from the date such installment is due to the expiration of this Lease.
(b) All rentals payable under the terms of this Lease shall be paid by the Lessee to the
bank designated as trustee ( "Trustee ") under the Trust Indenture between it and the Lessor
( "Indenture "), or to such other bank or trust company as may from time to time succeed such
bank as Trustee under the Indenture securing the Bonds to be issued by the Lessor to finance the
acquisition and construction of the Leased Premises. Any successor trustee under the Indenture
shall be endorsed on this Lease at the end hereof by the parties hereto as soon as possible after
selection, and such endorsement shall be recorded as an addendum to this Lease. All payments
so made by the Lessee shall be considered as payment to the Lessor of the rentals payable
hereunder.
5. Abatement of Rent. (a) If any part of the Leased Premises is taken under the
exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or
5
occupancy by the Lessee, it shall then be the obligation of the Lessor to restore and rebuild that
portion of the Leased Premises as promptly as may be done, unavoidable strikes and other causes
beyond the control of the Lessor excepted; provided, however, that the Lessor shall not be
obligated to expend on such restoration or rebuilding more than the condemnation proceeds
received by the Lessor.
(b) If any part of the Leased Premises shall be partially or totally destroyed, or is
taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or
part, for use or occupancy by the Lessee, the rent shall be abated for the period during which the
Leased Premises or such part thereof is unfit or unavailable for use or occupancy, and the
abatement shall be in proportion to the percentage of the Leased Premises which is unfit or
unavailable for use or occupancy.
6. Maintenance, Alterations and Repairs. The Lessee shall be responsible for
operation, maintenance and repair of the Leased Premises; provided, however, the Lessee may
enter into agreements with one or more other parties for the operation, maintenance, repair and
alterations of all or any portion of the Leased Premises (the "Maintenance and Use
Agreements "). Such other parties may assume all responsibility for operation, maintenance,
repairs and alterations to the Leased Premises. At the end of the term of this Lease, the Lessee
shall deliver the Leased Premises to the Lessor in as good condition as at the beginning of the
term, reasonable wear and tear only excepted.
7. Insurance. During the full term of this Lease, the Lessee shall, at its own expense,
carry combined bodily injury insurance, including accidental death, and property damage
insurance with reference to the Leased Premises in an amount not less than One Million Dollars
($1,000,000) on account of each occurrence with one or more good and responsible insurance
companies. Such public liability insurance may be by blanket insurance policy or policies.
The proceeds of the public liability insurance required herein (after payment of expenses
incurred in the collection of such proceeds) shall be applied toward extinguishment or
satisfaction of the liability with respect to which such insurance proceeds are paid. Such policies
shall be for the benefit of persons having an insurable interest in the Leased Premises, and shall
be made payable to the Lessor, the Lessee, and the Trustee and to such other person or persons as
the Lessor may designate. Such policies shall be countersigned by an agent of the insurer who is
a resident of the State of Indiana and deposited with the Lessor and the Trustee. If, at any time,
the Lessee fails to maintain insurance in accordance with this Section, such insurance may be
obtained by the Lessor and the amount paid therefor shall be added to the amount of rentals
payable by the Lessee under this Lease; provided, however, that the Lessor shall be under no
obligation to obtain such insurance and any action or non- action of the Lessor in this regard shall
not relieve the Lessee of any consequence of its default in failing to obtain such insurance.
The insurance policies described in this Section 7 may be acquired by another party and
shall satisfy this Section as long as the Lessor, the Lessee and the Trustee are named as
additional insureds under such policies. Such coverage may be provided by scheduling it under a
blanket insurance policy or policies.
6
8. Eminent Domain. If title to or the temporary use of the Leased Premises, or any
part thereof, shall be taken under the exercise or the power of eminent domain by any
governmental body or by any person, firm or corporation acting under governmental authority,
any net proceeds received from any award made in such eminent domain proceedings (after
payment of expenses incurred in such collection) shall be paid to and held by the Trustee under
the Indenture.
Such proceeds shall be applied in one or more of the following ways:
(a) The restoration of the Leased Premises to substantially the same condition as it
existed prior to the exercise of that power of eminent domain, or
(b) The acquisition, by construction or otherwise, of other improvements suitable for
the Lessee's operations on the Leased Premises and which are in furtherance of the purposes of
the Act (the improvements shall be deemed a part of the Leased Premises and available for use
and occupancy by the Lessee without the payment of any rent other than as herein provided, to
the same extent as if such other improvements were specifically described herein and demised
hereby).
Within ninety (90) days from the date of entry of a final order in any eminent domain
proceedings granting condemnation, the Lessee shall direct the Lessor and the Trustee in writing
as to which of the ways specified in this Section the Lessee elects to have the net proceeds of the
condemnation award applied. Any balance of the net proceeds of the award in such eminent
domain proceedings not required to be applied for the purposes specified in subsections (a) or (b)
above shall be deposited in the sinking fund held by the Trustee under the Indenture and applied
to the repayment of the Bonds.
The Lessor shall cooperate fully with the Lessee in the handling and conduct of any
prospective or pending condemnation proceedings with respect to the Leased Premises or any
part thereof and will to the extent it may lawfully do so permit the Lessee to litigate in any such
proceedings in its own name or in the name and on behalf of the Lessor. In no event will the
Lessor voluntarily settle or consent to the settlement of any prospective or pending
condemnation proceedings with respect to the Leased Premises or any part thereof without the
written consent of the Lessee, which consent shall not be unreasonably withheld.
9. General Covenant. The Lessee shall not assign this Lease or mortgage, pledge or
sublet the Leased Premises herein described, except as provided in Section 6, without the written
consent of the Lessor. If the Lessee contracts with one or more other parties pursuant to one or
more Maintenance and Use Agreements, the Lessee shall require such other parties to use and
maintain the Leased Premises in accordance with the laws, regulations and ordinances of the
United States of America, the State of Indiana, the City and all other proper governmental
authorities.
10. Tax Covenants. In order to preserve the exclusion of interest any series of Bonds
from gross income for federal income tax purposes (the "Tax- Exempt Bonds ") and as an
inducement to purchasers of the Tax - Exempt Bonds, the Lessee and the Lessor represent,
covenant and agree that:
7
(a) The Lessor and the Lessee will not take any action or fail to take any action with
respect to the Tax - Exempt Bonds that would result in the loss of the exclusion from gross
income for federal income tax purposes of interest on' the Tax - Exempt Bonds pursuant to Section
103 of the Code and the regulations thereunder as applicable to the Tax - Exempt Bonds,
including, without limitation, the taking of such action as is necessary to rebate or cause to be
rebated arbitrage profits on Tax - Exempt Bond proceeds, or other monies treated as Tax - Exempt
Bond proceeds, to the federal government as provided in Section 148 of the Code.
(b) The Lessor will file an information report on Form 8038 -G with the Internal
Revenue Service as required by Section 149 of the Code.
(c) The proceeds from the sale of the Tax - Exempt Bonds, proceeds received from
lease rentals payable according to this Lease, any other amounts received by the Lessor in
respect to property directly or indirectly financed with any proceeds of such Tax - Exempt Bonds,
and proceeds from interest earned on the investment and reinvestment of such proceeds and
amounts, shall not be invested or otherwise used in a manner which would cause such Tax -
Exempt Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code and the
regulations thereunder as applicable to the Tax - Exempt Bonds.
The covenants in this Section are based solely on current law in effect and in existence on
the date of issuance of the Tax - Exempt Bonds. It shall not be an event of default under this
Lease if interest on any Tax - Exempt Bonds is not excludable from gross income pursuant to any
provision of the Code which is not in existence and in effect on the issue date of the Tax - Exempt
Bonds.
Notwithstanding any other provisions hereof, the foregoing covenants and authorizations
(the "Tax Sections ") which are designed to preserve the exclusion of interest on the Tax - Exempt
Bonds from gross income under federal income tax law (the "Tax Exemption ") need not be
complied with if the Lessor or the Lessee receives an opinion of nationally recognized bond
counsel that any Tax Section is unnecessary to preserve the Tax Exemption.
Notwithstanding any other provision hereof, the Lessor may elect to issue any series of
the Bonds, the interest on which is not excludable from gross income for federal tax purposes, so
long as such election does not adversely affect the exclusion from gross income of interest for
federal tax purposes on the Tax - Exempt Bonds, by making such election on the date of delivery
of such series of Bonds. In such case, the tax covenants in this Lease shall not apply to such
series of Bonds.
All officers, members, employees and agents of the Lessor and the Lessee are authorized
to provide certifications of facts and estimates that are material to the reasonable expectations of
the Lessor and the Lessee as of the date any series of Bonds are issued and to enter into
covenants on behalf of the Lessor and the Lessee evidencing the Lessor's and the Lessee's
commitments made herein. In particular, all or any members or officers of the Lessor and the
Lessee are authorized to certify and enter into covenants regarding the facts and circumstances
and reasonable expectations of the Lessor and the Lessee on the date any series of Bonds are
issued and the commitments made by the Lessor and the Lessee herein regarding the amount and
use of the proceeds of the Bonds.
8
11. Option to Renew. The Lessor hereby grants to the Lessee the right and option to
renew this Lease for a further like or lesser term upon the same or like conditions as herein
contained, and applicable to the portion of the premises for which the renewal applies, and the
Lessee shall exercise this option by written notice to the Lessor, and to the other parties to any
Maintenance and Use Agreements at the addresses set forth in the respective Maintenance and
Use Agreements (if any), given upon any rental payment date prior to the expiration of this
Lease.
12. Option to Purchase. The Lessor hereby grants to the Lessee the right and option,
on any date, upon sixty (60) days' written notice to the Lessor, to purchase the Leased Premises,
or any portion thereof, at a price equal to the amount required to pay all indebtedness incurred on
account of the Leased Premises, or such portion thereof (including indebtedness incurred for the
refunding of that indebtedness), including all premiums payable on the redemption thereof and
accrued and unpaid interest, and including the proportionate share of the expenses and charges of
liquidation, if the Lessor is to be then liquidated. In no event, however, shall such purchase price
exceed the capital actually invested in such property by the Lessor represented by outstanding
securities or existing indebtedness plus the cost of transferring the property and liquidating the
Lessor. The phrase "capital actually invested" as used herein shall be construed to include, but
not by way of limitation, the following amounts expended by the Lessor in connection with the
acquisition and financing of the Leased Premises: organization expenses, financing costs, carry
charges, legal fees, architects' fees and reasonable costs and expenses incidental thereto.
Upon request of the Lessee made not less than sixty (60) days prior thereto, the Lessor
agrees to furnish an itemized statement setting forth the amount required to be paid by the Lessee
on the date selected for purchase in order to purchase the Leased Premises in accordance with the
preceding paragraph. Upon the exercise of the option to purchase granted herein, the Lessor will
upon payment of the option price deliver, or cause to be 'delivered, to the Lessee documents
conveying to the Lessee, or any entity (including the City and any other party to the Maintenance
and Use Agreements) designated by the Lessee, all of the Lessor's title to the property being
purchased, as such property then exists, subject to the following: (i) those liens and
encumbrances (if any) to which title to the property was subject when conveyed to the Lessor;
(ii) those liens and encumbrances created by the Lessee and to the creation or suffering of which
the Lessee consented, and liens for taxes or special assessments not then delinquent; and (iii)
those liens and encumbrances on its part contained in this Lease.
In the event of purchase of the Leased Premises by the Lessee or conveyance of the
Leased Premises to the Lessee or the Lessee's designee, the Lessee shall procure and pay for all
surveys, title searches, abstracts, title policies and legal services that may be required, and shall
furnish at the Lessee's expense all documentary stamps or tax payments required for the transfer
of title.
Nothing contained herein shall be construed to provide that the Lessee shall be under any
obligation to purchase the Leased Premises, or under any obligation respecting the creditors,
members or security holders of the Lessor.
13. Transfer to Lessee. If the Lessee has not exercised its option to renew in
accordance with the provisions of Section 11, and has not exercised its option to purchase the
9
Leased Premises, or any portion thereof, in accordance with the provisions of Section 12, and
upon the full discharge and performance by the Lessee of its obligations under this Lease, the
Leased Premises, or such portion thereof remaining, shall thereupon become the absolute
property of the Lessee, subject to the limitations, if any, on the conveyance of the site for the
Leased Premises to the Lessor and, upon the Lessee's request the Lessor shall execute proper
instruments conveying to the Lessee, or to any entity (including the City and any other party to
any Maintenance and Use Agreements) designated by the Lessee, all of Lessor's title to the
Leased Premises, or such portion thereof.
14. Defaults. If the Lessee shall default (a) in the payment of any rentals or other
sums payable to the Lessor hereunder, or in the payment of any other sum herein required to be
paid for the Lessor; or (b) in the observance of any other covenant, agreement or condition
hereof, and such default shall continue for ninety (90) days after written notice to correct such
default; then, in any or either of such events, the Lessor may proceed to protect and enforce its
rights by suit or suits in equity or at law in any court of competent jurisdiction, whether for
specific performance of any covenant or agreement contained herein, or for the enforcement of
any other appropriate legal or equitable remedy; or the Lessor, at its option, without further
notice, may terminate the estate and interest of the Lessee hereunder, and it shall be lawful for
the Lessor forthwith to resume possession of the Leased Premises and the Lessee covenants to
surrender the same forthwith upon demand. The Lessor shall simultaneously furnish to any other
party to any Maintenance and Use Agreements, at their respective addresses set forth in the
Maintenance and Use Agreements, a copy of any notice of default sent to the Lessee.
The exercise by the Lessor of the above right to terminate this Lease shall not release the
Lessee from the performance of any obligation hereof maturing prior to the Lessor's actual entry
into possession. No waiver by the Lessor of any right to terminate this Lease upon any default
shall operate to waive such right upon the same or other default subsequently occurring.
15. Notices. Whenever either party shall be required to give notice to the other under
this Lease, it shall be sufficient service of such notice to deposit the same in the United States
mail, in an envelope duly stamped, registered and addressed to the other party or parties at the
following addresses: (a) to Lessor: City of Carmel Redevelopment Authority, Attention:
President, One Civic Square, Carmel, Indiana 46032; (b) to Lessee: City of Carmel
Redevelopment Commission, Attention: President, One Civic Square, Carmel, Indiana 46032.
The Lessor, the Lessee and the Trustee may by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates, requests or other communications
shall be sent.
16. Successors or Assigns. All covenants of this Lease, whether by the Lessor or the
Lessee, shall be binding upon the successors and assigns of the respective parties hereto.
17. Construction of Covenants. The Lessor was organized for the purpose of
acquiring, constructing, acquiring, equipping and renovating local public improvements and
leasing the same to the Lessee under the provisions of the Act. All provisions herein contained
shall be construed in accordance with the provisions of the Act, and to the extent of
inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of
the Act, the Act shall be deemed to be controlling and binding upon the Lessor and the Lessee;
10
provided, however, any amendment to the Act after the date hereof shall not have the effect of
amending this Lease.
11
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed for
and on their behalf on the date first written above.
LESSOR: LESSEE:
CITY OF CARMEL REDEVELOPMENT CITYOF CARMEL REDEVELOPMENT
AUTHORITY COMMISSION
By: By:
President President
ATTEST: ATTEST:
Secretary- Treasurer Secretary
12
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared Robert B. Bush II and Jack Badger, personally known to be the President and
Secretary - Treasurer, respectively, of the City of Carmel Redevelopment Authority (the
"Authority "), and acknowledged the execution of the foregoing Lease for and on behalf of the
Authority.
(Seal)
WITNESS my hand and notarial seal this day of , 2012.
(Written Signature)
(Printed Signature)
Notary Public
My Commission expires: My county of residence is:
13
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared William Hammer and Bradley F. Meyer, personally known to be the President and
Secretary, respectively, of the City of Carmel Redevelopment Commission (the "Commission "),
and acknowledged the execution of the foregoing Lease for and on behalf of the Commission.
(Seal)
WITNESS my hand and notarial seal this day of , 2012.
(Written Signature)
(Printed Signature)
Notary Public
My Commission expires: My county of residence is:
I affirm under the penalties of perjury, that I have taken reasonable care to redact each
Social Security Number in this document, unless required by law.
Bruce D. Donaldson
This instrument was prepared by Bruce D. Donaldson, Barnes & Thornburg LLP, 11 South
Meridian Street, Indianapolis, Indiana 46204.
14
EXHIBIT A
DESCRIPTION OF THE PROJECTS
The Projects consist of the acquisition by the Authority of the Real Estate, described on
Exhibit B hereto, from the City, and the use by the City of the proceeds of such sale to (i) refund
all or a portion of certain outstanding obligations of the City and /or the Lessee which are
identified in Exhibit A to the ordinance of the Common Council of the City approving the terms
of this Lease, and (ii) finance the projects described in Exhibit B to the ordinance of the
Common Council of the City approving the terms of this Lease.
EXHIBIT B
DESCRIPTION OF REAL ESTATE
The Real Estate generally consists of all or a portion of the existing Keystone Avenue
right -of -way with a southern boundary at or near 116th Street and a northern boundary at or near
U.S. 31 in the City. This general description will be replaced with a formal legal description of
the Real Estate when all or a portion of the Real Estate has been acquired by the Lessor.
EXHIBIT C
FORM OF ADDENDUM TO LEASE BETWEEN
CITY OF CARMEL REDEVELOPMENT AUTHORITY, LESSOR
AND CITY OF CARMEL REDEVELOPMENT COMMISSION, LESSEE
THIS ADDENDUM (this "Addendum "), entered into as of this day of
, 20, by and between City of Carmel Redevelopment Authority, as lessor (the
"Lessor "), and City of Carmel Redevelopment Commission, as lessee (the "Lessee ");
WITNESSETH:
WHEREAS, the Lessor and the Lessee have entered into a lease dated as of
, 20 (the "Lease "); and
WHEREAS, it is provided in the Lease that the date by which the Lessor acquires the
Real Estate and the Leased Premises are available for use shall be endorsed thereon by the
parties thereto; and
WHEREAS, it is provided in the Lease that there shall be endorsed thereon the adjusted
lease rental following the issuance of the Bonds (as defined in the Lease).
NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED AND STIPULATED by
the parties to the Lease that (i) the Lessor has on this date acquired the Real Estate and the Lease
Premises are available for use, and (ii) the adjusted lease rental is set forth on A ppendix I
attached hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
for and on their behalf as of the day and year first above written.
LESSOR: LESSEE:
CITY OF CARMEL REDEVELOPMENT CITY OF CARMEL REDEVELOPMENT
AUTHORITY COMMISSION
President President
ATTEST: ATTEST:
Secretary- Treasurer Secretary
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared and , personally known to be the
President and Secretary - Treasurer, respectively, of the City of Carmel Redevelopment Authority
(the "Authority "), and acknowledged the execution of the foregoing Addendum to Lease for and
on behalf of the Authority.
(Seal)
WITNESS my hand and notarial seal this day of , 20
(Written Signature)
(Printed Signature)
Notary Public
My Commission expires: My county of residence is:
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for this City and State, personally
appeared and , personally known to be the President
and Secretary, respectively, of the City of Carmel Redevelopment Commission (the
"Commission "), and acknowledged the execution of the foregoing Addendum to Lease for and
on behalf of the Commission.
(Seal)
WITNESS my hand and notarial seal this day of , 20.
(Written Signature)
(Printed Signature)
Notary Public
My Commission expires: My county of residence is:
I affirm under the penalties of perjury, that 1 have taken reasonable care to redact each
Social Security Number in this document, unless required by law.
Bruce D. Donaldson
This instrument was prepared by Bruce D. Donaldson, Barnes & Thornburg LLP, 11 South
Meridian Street, Indianapolis, Indiana 46204.
Barnes & Thornburg LLP
Draft of 11/19/12
REVENUE DEPOSIT AGREEMENT
Between
CITY OF CARMEL, INDIANA,
And
CITY OF CARMEL REDEVELOPMENT COMMISSION
Dated as of November 20, 2012
REVENUE DEPOSIT AGREEMENT
This REVENUE DEPOSIT AGREEMENT, dated as of November 20, 2012 (the
"Agreement "), is being entered into between the CITY OF CARMEL, INDIANA (the "City "), a
political subdivision duly created and validly existing under the laws of the State of Indiana (the
"State "), and the CITY OF CARMEL REDEVELOPMENT COMMISSON (the "Commission "),
as governing body of the City of Carmel Redevelopment District (the "District "), a special taxing
district duly created and validly existing under the laws of the State (each, a "Party" and,
collectively, the "Parties ").
WITNESSETH
WHEREAS, the Commission, as the governing body for the District pursuant to the Act
(as hereinafter defined), has previously created the Allocation Areas described in Exhibit A
attached hereto in order to capture property tax proceeds derived from incremental assessed
valuation of real and certain depreciable personal property in such Allocation Areas which is in
excess of the "base assessed value" (such property tax proceeds hereinafter referred to as "TIF
Revenue "), all pursuant to and as described in Sections 39 and 39.3 of the Act; and
WHEREAS, the Commission has previously incurred certain obligations in order to
finance certain improvements located in or serving or benefitting one or more of the Allocation
Areas; and
WHEREAS, the Commission reasonably expects to repay such obligations from TIF
Revenue to be received from the Allocation Areas; and
WHEREAS, the City and the Commission desire to establish a procedure for setting aside
the TIF Revenue as and when received to ensure the timely payment of such obligations as the
same shall become due in accordance with their respective terms;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the Parties now desire to enter into this Agreement and hereby agree as
follows:
1
ARTICLE I
DEFINITIONS
The following words and phrases shall have the following meanings, unless the context
or use clearly indicates another or different meaning or intent. Any terms defined in the Act or
other Indiana statutes, but not otherwise defined herein, shall have the meanings specified in the
Act or other Indiana statutes, unless the context or use clearly indicates another or different
meaning or intent.
"Act" means Indiana Code 36 -7 -14, Indiana Code 36 -7 -25, and all related and
supplemental statutes conferring powers or authority on the Commission.
"Allocation Areas" means, collectively; the allocation areas identified on Exhibit A
attached hereto and made a part hereof, which have been previously established by the
Commission in accordance with the Act for the purposes of capturing TIF Revenue.
"Allocation Funds" means, collectively, the allocation funds previously established by
the Commission in accordance with the Act for each of the allocation areas identified on Exhibit
A hereto, for the TIF Revenue collected in the respective Allocation Areas.
"Auditor" shall mean the Auditor of Hamilton County, Indiana.
"Business Day" or "business day" means a day other than Saturday, Sunday or day on
which banking institutions in the city in which the principal corporate trust office of the Deposit
Trustee is located are required or authorized by law to close or on which the New York Stock
Exchange is closed.
"City" shall mean the City of Carmel, Indiana.
"Clerk- Treasurer" means the Clerk- Treasurer of the City.
"Commission" means the City of Carmel Redevelopment Commission, governing body
of the District.
"District" means the City of Carmel Redevelopment District.
"Payment Date" means (i) with respect to the 2010C COPs, January 15 and July 15 of
each year, (ii) with respect to the 2005 Bonds, January 1 and July 1 of each year, and (iii) with
respect to the 2012 Bonds, January 15 and July 15 of each year.
"State" shall mean the State of Indiana.
"TIF Revenue" means the property tax proceeds received by the Commission, which the
Commission reasonably expects to use for the repayment of the 2010C COPs, the 2012 Bonds
and the 2005 Bonds when due, which proceeds are derived from the incremental assessed
valuation of real and certain depreciable personal property in the Allocation Areas in excess of
the assessed valuation described in Section 39(b)(1) of the Act, as such statutory provision exists
2
on the date of execution of this Agreement.
"2005 Bonds" shall mean the City of Carmel, Indiana, Redevelopment Authority Lease
Rental Revenue Bonds, Series 2005, dated December 21, 2005, issued in the original aggregate
issued amount of $79,998,227.15.
"2010C COPs" shall mean the City of Carmel, Indiana, Redevelopment District
Certificates of Participation, Series 2010C, dated November 12, 2010, issued in the original
aggregate principal amount of $16,300,000.
"2012 Bonds" shall mean, collectively, the City of Carmel, Indiana, Redevelopment
Authority Lease Rental Revenue Multipurpose Bonds, Series 2012 A, and the City of Carmel,
Indiana, Redevelopment Authority Lease Rental Revenue Multipurpose Bonds, Series 2012 B
(Taxable), anticipated to be issued in December 2012.
"Transaction Documents" means, collectively, any trust indenture, installment payment
contract, loan agreement, lease agreement or other instrument which has been previously
executed by the Commission or the City of Cannel Redevelopment Authority in connection with
the 2010C COPs, the 2005 Bonds and the 2012 Bonds.
(End of Article I)
3
ARTICLE II
FUNDS AND ACCOUNTS
Section 2.1. Deposit of TIF Revenue. Upon the receipt of each distribution of TIF
Revenue from the Auditor, the Clerk- Treasurer shall set aside and transfer the TIF Revenue as
follows:
(a) First, the Clerk- Treasurer shall transfer to the paying agent for the
2010C COPs an amount of TIF Revenue equal to the lesser of: (i) all of such semi - annual
distribution of TIF Revenue, or (ii) an amount of TM Revenue sufficient to pay all
amounts due with respect to the 2010C COPs on the immediately succeeding Payment
Date, in accordance with the schedule set forth in Exhibit B hereto; provided, however, in
making any such transfers pursuant to this Section, the Clerk- Treasurer shall take into
account any other revenues or funds previously transferred by, or on behalf of, the
Commission to the paying agent for the 2010C COPs and held by the paying agent to pay
debt service on such Payment Date.
(b) Second, the Clerk- Treasurer shall transfer to the bond trustee for
the 2012 Bonds an amount of TIF Revenue equal to the lesser of: (i) all of the remainder
of such semi - annual distribution of TIF Revenue, or (ii) an amount of TIF Revenue
sufficient to pay all amounts due with respect to the 2012 Bonds on the immediately
succeeding Payment Date, in accordance with the schedule set forth in Exhibit C hereto
(to be completed and attached immediately following the sale of the 2012 Bonds);
provided, however, in making any such transfers pursuant to this Section, the Clerk -
Treasurer shall take into account any other revenues or funds previously transferred by,
or on behalf of, the Commission to the trustee for the 2012 Bonds and held by the trustee
to pay debt service on such Payment Date.
(c) Third, the Clerk- Treasurer shall transfer to the bond trustee for the
2005 Bonds an amount of TIF Revenue equal to the lesser of: (i) all of the remainder of
such semi - annual distribution of TIF Revenue, or (ii) an amount of TIF Revenue
sufficient to pay all amounts due with respect to the 2005 Bonds on the immediately
succeeding Payment Date, in accordance with the schedule set forth in Exhibit D hereto;
provided, however, in making any such transfers pursuant to this Section, the Clerk -
Treasurer shall take into account any other revenues or funds previously transferred by,
or on behalf of, the Commission to the trustee for the 2005 Bonds and held by the trustee
to pay debt service on such Payment Date.
Section 2.2. Excess TIF Revenue. In the event that there shall be any remaining TIF
Revenue after making the deposits required by Section 2.1 hereof, the Clerk - Treasurer shall
retain such funds in the respective Allocation Funds to be used for the purposes permitted by the
Act.
Section 2.3. Notice of Deficiency. In the event that any semi - annual distribution
received by the Clerk- Treasurer shall be insufficient to make all of the deposits required by
Section 2.1 to pay all amounts due with respect to the 2010C COPs, the 2012 Bonds and the
4
2005 Bonds on the immediately succeeding Payment Date for each such obligation, in
accordance with the schedules set forth in Exhibits B, C and D hereto, after taking into account
other revenues or funds contributed by the Commission for such purpose, the Clerk - Treasurer
shall within three (3) business days provide written notification to the Mayor and Common
Council of the City and to the Commission of such deficiency.
Section 2.4. Supplemental Reserve Fund. The City and the Commission hereby agree
(a) to take the legal steps necessary to amend the economic development plan for the Parkwood
Economic Development Area to make funding a supplemental reserve fund for the 2005 Bonds
and the 2012 Bonds a permitted use of tax increment revenues generated from that area, and (b)
to fund the supplemental reserve fund beginning in 2014 with all of such tax increment revenues
on an annual basis so long as the 2005 Bonds or the 2012 Bonds remain outstanding, until and
unless this Agreement is amended in accordance with the requirements of Section 3.5. This
agreement to fund a supplemental reserve fund shall not run to the benefit of the holders of the
2005 Bonds or the 2012 Bonds and shall not be formally pledged to secure the 2005 Bonds or the
2012 Bonds, but rather shall serve as an additional protection against the potential levy of a
special benefits tax to pay the lease payments that fund debt service on the 2005 Bonds and the
2012 Bonds.
(End of Article II)
5
ARTICLE III
MISCELLANEOUS
Section 3.1. Governing Law. This Agreement is executed by the Parties and delivered
in the State and with reference to the laws thereof, and the rights of all Parties and the validity,
construction and effect of every provision hereof shall be subject to and construed according to
the laws of the State.
Section 3.2. Immunity of Officers, Directors, Members, Employees and Agents. No
recourse shall be had for any claim based upon any obligation in this Agreement against any
past, present or future official, officer, director, member, attorney, employee or agent of the
Parties, as such, under any rule of law or equity, statute or constitution.
Section 3.3. Counterparts. This Agreement may be executed in several counterparts,
each of which when so executed shall be deemed to be an original, and such counterparts,
together, shall constitute but one and the same instrument, which shall be sufficiently evidenced
by any such original counterpart.
Section 3.4. Performance Due on Day other than a Business Day. If the last day for
taking any action under this Agreement is not on a Business Day, such action may be taken on
the next succeeding Business Day and, if so taken, shall have the same effect as if taken on the
day required by this Agreement.
Section 3.5. Amendments. This Agreement may be terminated, supplemented or
amended only upon the written agreement of the City and the Commission and only after
approvals of the Common Council of the City and the Commission.
Section 3.6. Entire Agreement. This Agreement shall constitute the entire agreement
of the Parties with respect to the subject matter, and shall supersede all prior oral or written
agreements with respect to the matters that are the subject hereof.
Section 3.7. Interpretation of Conflicting Provisions. In the event there shall be a
conflict between any provision of the Transaction Documents and any provision of this
Agreement, the City and the Commission hereby agree that the provisions of such Transaction
Document shall be controlling, unless the terms of any of such Transaction Documents shall
expressly provide otherwise.
Section 3.8. Effective Date. This Agreement shall take effect immediately upon the
execution of a binding bond purchase agreement for the purchase and sale of the 2012 Bonds.
(End of Article III)
6
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in
their names and on their behalf as of the date first written above.
Attest:
By:
Diana L. Cordray, Clerk - Treasurer
Attest:
By:
Brad Meyer, Secretary
7
CITY OF CARMEL, INDIANA
By:
James Brainard, Mayor
CITY OF CARMEL, INDIANA,
REDEVELOPMENT COMMISSION, as
governing body of the City of Carmel
Development District
By:
William Hammer, President
EXHIBIT A
LIST OF ALLOCATION AREAS
Amended 126th Street Allocation Area
Amended 126th Street Expansion Allocation Area
City Center Allocation Area
City Center Expansion Allocation Area
Hazel Dell North Allocation Area
Hazel Dell South Allocation Area
Illinois Street Allocation Area
Illinois Street Expansion Allocation Area
Amended Illinois Street Allocation Area
Old Meridian Allocation Area
Old Meridian Expansion Allocation Area
Meridian & Main Allocation Area (less developer portion)
Old Town Allocation Area
Carmel Drive Allocation Area
Lauth- Walker Allocation Area
Old Town Shoppes Allocation Area
Old Methodist Allocation Area
Lurie Allocation Area
Village of West Clay Allocation Area
Merchants Pointe Allocation Area
116`h Street Centre Allocation Area (less developer portion)
Carmel Downtown Allocation Area No. 1 (less developer portion)
Carmel Downtown Allocation Area No. 2 (less developer portion)
CRC Parcel #12 Allocation Area
EXHIBIT B
OUTSTANDING AMORTIZATION OF CERTIFICATES OF PARTICIPATION, SERIES 2010C
Dated November 12, 2010
Payment Principal
Date Outstanding
Principal
Interest
Rate
Interest
Total Budget Year
Debt Service Debt Service
07/15/12 $16,300,000 5512,98750 $512,987.50
01/15/13 16,300,000 $170,000 (I) 5.750% 512,987.50 682,987.50 $1,195,975.00
07/15/13 16,130,000 175,000 ( I ) 5.750% 508,100.00 683,100.00
01/15/14 15,955,000 180,000 (1) 5.750% 503,068.75 683,068.75 1,366,168.75
07/15/14 15,775,000 185,000 (1) 5.750% 497,893.75 682,893.75
01/15/15 15,590.000 190,000 ( I ) 5.750% 492,575.00 682,575.00 1,365,468.75
07/15/15 15,400,000 195,000 (1) 5.750% 487,112.50 682,112.50
01/15/16 15,205,000 200,000 (1) 5.750% 481,506 25 681,506 25 1,363,618.75
07/15/16 15,005,000 205,000 (1) 5.750% 475,756.25 680,756.25
01/15/17 14,800,000 210,000 (1) 5.750% 469,862.50 679,862.50 1,360,618.75
07/15/17 14,590,000 215,000 (1) 5.750% 463,825.00 678,825.00
01/15/18 14,375,000 225,000 (1) 5.750% 457,643.75 682,643.75 1,361,468.75
07/15/18 14,150,000 230,000 (1) 5.750% 451,175.00 681,175,00
01/15/19 13,920,000 235,000 (1) 5.750% 444,562.50 679,562.50 1,360,737.50
07/15/19 13,685,000 245,000 ( I ) 5.750% 437,806.25 682,806.25
01/15/20 13,440,000 250,000 (1) 5.750% 430,762.50 680,762.50 1,363,568.75
07/15/20 13,190,000 255,000 (I) 5.750% 423,575.00 678,575.00
01/15/21 12,935,000 265,000 (1) 5.750% 416,243.75 681,243.75 1,359,818.75
07/15/21 12,670,000 270,000 (1) 5.750% 408,625.00 678,625.00
01/15/22 I2,400,000 280,000 (1) 5.750% 400,862.50 680,862.50 1,359,487.50
07/15/22 12,120,000 290,000 (1) 5.750% 392,812.50 682,812.50
01/15/23 11,830,000 295.000 (2) 6.500% 384,475.00 679,475,00 1,362,287.50
07/15/23 11,535,000 305,000 (2) 6.500% 374,887.50 679,887.50
01/15/24 11,230,000 315.000 (2) 6.500% 364,975.00 679,975.00 1,359,862.50
07/15/24 10,915,000 325.000 (2) 6.500% 354,737.50 679,737.50
01/15/25 10,590,000 335,000 (2) 6.500% 344,175.00 679,175.00 1,358,912.50
07/15/25 10,255,000 350,000 (2) 6.500% 333,287.50 683,287.50
01/15/26 9,905,000 360,000 (2) 6.500% 321,912.50 681,912.50 1,365,200.00
07/15/26 9,545,000 370,000 (2) 6.500% 310,212.50 680,212.50
01/15/27 9,175,000 385,000 (2) 6.500% 298,187.50 683,187.50 1,363,400.00
07/15/27 8,790,000 395,000 (2) 6.500% 285,675.00 680,675.00
01/15/28 8,395,000 410,000 (2) 6.500% 272,837.50 682,837.50 1,363,512.50
07/15/28 7,985,000 420,000 (2) 6.500% 259,512.50 679,512.50
01/15/29 7,565,000 435,000 (2) 6.500% 245,862.50 680,862.50 1,360,375.00
07/15/29 7,130,000 450,000 (2) 6.500% 231,725.00 681,725.00
01/15/30 6,680,000 465,000 (2) 6.500% 217,100.00 682,100.00 1,363,825.00
07/15/30 6,215,000 480,000 (2) 6.500% 201,987.50 681,987.50
01/15/31 5,735,000 495,000 (2) 6.500% 186,387.50 681,387.50 1,363.375.00
07/15/31 5,240,000 510,000 (2) 6.500% 170,300.00 680,300.00
01/15/32 4,730,000 525.000 (2) 6.500% 153,725.00 678,725.00 1,359,025.00
07/15/32 4,205,000 545,000 (2) 6.500% 136,662.50 681,662.50
01/15/33 3,660,000 560,000 (2) 6.500% 118,950.00 678,950.00 1,360,612.50
07/15/33 3,100,000 580,000 (2) 6.500% 100,750.00 680,750.00
01/15/34 2,520,000 600,000 (2) 6.500% 81,900.00 681,900.00 1,362,650.00
07/15/34 1,920,000 620,000 (2) 6.500% 62,400.00 682,400.00
01/15/35 1,300,000 640,000 (2) 6.500% 42,250.00 682,250.00 1,364,650.00
07/15/35 660,000 660,000 (2) 6.500% 21,450.00 681,450.00 681,450.00
Totals
$16,300,000 $15,546.068.75
(1) $4,470,000 of Term Certificates due July 15, 2022.
(2) $11,830,000 of Term Certificates due July 15, 2035.
$31,846,068.75 $31,846,068.75
EXHIBIT C
SCHEDULE OF 2012 BOND PAYMENT OBLIGATIONS
[To be provided
EXHIBPT D
OUTSTANDING LEASE RENTAL PAYMENTS OF LEASE RENTAL REVENUE BONDS OF 2005
Dated December 21, 2005
Bond Lease Debt Service L ease Rental
Payment Payment Current Interest Capital Appreciation Budget Year Budget Year
Date Date Bonds Bonds Total Total Total
Total
8/1/2012 7/1/2012 51,295,000.00 51,295,000.00 $2,600,000
2/1/2013 1/1/2013 1,295,000.00 $2,605,000.00 3,900.000.00 55,195,000.00 $5,200.000 2.600,000
8/1/2013 7/1/2013 1,295,000.00 1,295,000.00 2,745,000
2/1/2014 1/1/2014 1.295,000.00 2,895,000.00 4,190,000.00 5,485,000.00 5,490.000 2,745,000
8/1/2014 7/1/2014 1,295,000.00 1,295,000.00 2,887,500
2/1/2015 1/1/2015 1,295,000.00 3,180,000.00 4,475,000.00 5,770,000.00 5,775,000 2,887,500
8/1/2015 7/1/2015 1,295,000.00 1,295,000.00 3,027,500
2/1/2016 1/1/2016 1,295,000.00 3,460,000.00 4,755,000.00 6,050,000.00 6,055.000 3.027,500
8/1/2016 7/1/2016 1,295.000.00 1,295,000.00 3,162,500
2/1/2017 1/1/2017 1,295,000.00 3,730,000.00 5,025,000.00 6,320.000.00 6,325.000 3,162,500
8/1/2017 7/1/2017 1,295,000.00 1,295,000.00 3,290,000
2/1/2018 1/1/2018 1,295,000.00 3,985,000.00 5,280,000.00 6,575.000.00 6,580.000 3,290,000
8/1/2018 7/1/2018 1,295,000.00 1,295,000.00 3,417,500
2/1/2019 1/1/2019 1,295,000.00 4,240,000.00 5,535,000.00 6,830,000.00 6,835.000 3,417,500
8/1/2019 7/1/2019 1,295,000.00 1,295,000.00 4,032,500
2/1/2020 1/1/2020 1,295,000.00 5,470,000.00 6.765,000.00 8,060,000.00 8,065,000 4,032,500
8/1/2020 7/1/2020 1,295,000.00 1,295,000.00 4,155,000
2/1/2021 1/1/2021 1,295,000.00 5,715,000.00 7,010,000.00 8,305.000.00 8,310,000 4,155,000
8/1/2021 7/1/2021 1,295,000.00 1,295,000.00 4,280,000
2/1/2022 1/1/2022 1,295,000.00 5,965,000.00 7,260,000.00 8,555,000.00 8,560.000 4,280,000
8/1/2022 7/1/2022 1,295,000.00 1.295,000.00 4,427,500
2/1/2023 1/1/2023 1,295,000.00 6,260.000.00 7,555,000.00 8,850,000.00 8,855,000 4,427,500
8/1/2023 7/1/2023 1,295,000.00 1,295,000.00 5,182,500
2/1/2024 1/1/2024 1,295,000.00 7,770,000.00 9.065,000.00 10,360,000.00 10,365,000 5,182,500
8/1/2024 7/1/2024 1,295,000.00 1.295,000.00 5,702.500
2/1/2025 1/1/2025 1,295,000.00 8,810,000.00 10.105,000.00 11,400,000.00 11,405,000 5,702,500
8/1/2025 7/1/2025 1,295,000.00 1,295,000,00 5,732,500
2/1/2026 1/1/2026 7,365,000.00 2,800,000.00 10,165,000.00 11,460,000.00 11,465,000 5,732,500
8/1/2026 7/1/2026 1,143,250.00 1,143,250.00 5,778,500
2/1/2027 1/1/2027 10,408,250.00 10.408,250.00 11,551.500.00 11,557,000 5,778,500
8/1/2027 7/1/2027 911,625.00 911,625.00 5,827,000
2/1/2028 1/1/2028 10,736,625.00 10,736,625.00 11.648,250.00 11,654.000 5,827,000
8/1/2028 7/1/2028 666,000.00 666,000.00 5,873,500
2/1/2029 1/1/2029 11,076,000.00 11,076,000.00 11,742,000.00 11,747,000 5,873,500
8/1/2029 7/1/2029 405,750.00 405,750.00 2,323,500
2/1/2030 1/1/2030 4,235,750.00 4,235.750.00 4.641,500.00 4,647,000 2,323,500
8/1/2030 7/1/2030 312,287.50 312,287.50 2,340,000
2/1/2031 1/1/2031 4,362,287.50 4,362,287.50 4,674,575.00 4,680,000 2,340.000
8/1/2031 7/1/2031 213,600.00 213,600.00 2,351,500
2/1/2032 1/1/2032 4,483,600.00 4,483,600.00 4,697,200.00 4,703,000 2,351,500
8/1/2032 7/1/2032 109,687.50 109,687.50 2,352,500
2/1/2033 1/1/2033 4,589,687.50 4,589,687.50 4.699,375.00 4,705,000 2,352,500
Totals 595,984,400.00 $66,885.000.00 $162.869,400.00 5162.869,400.00 5162,978,000 $162,978.000
PROJECT AGREEMENT
First Component
As Amended
This Project Agreement (First Component) (the "Agreement "), executed this day of
, 2012, by and among The City of Carmel Redevelopment Commission ( "CRC "), Carmel
City Center, LLC ( "CCC "), and CCC Nash, LLC ( "CCC Nash "), Witnesses:
Recitals
WHEREAS, CRC, CCC, and VHC have executed the Remainder Project Agreement;
WHEREAS, the First Component constitutes the first "Component" being constructed
pursuant to the Remainder Project Agreement;
WHEREAS, CRC acknowledges that CCC has conveyed the First Component Site to CCC
Nash, which is an entity affiliated with CCC;
WHEREAS, CCC and CCC Nash acknowledge that: (a) the First Component Site was
conveyed to CCC Nash subject to the terms and conditions of the Remainder Project Agreement; and
(b) CCC Nash has assumed all obligations of CCC under the Remainder Project Agreement with respect to
the First Component Site; provided that, as specified in Section 14 of the Remainder Project Agreement, CCC
has not been released from its liability to perform any or all of the terms and conditions to be performed by
it under the Remainder Project Agreement;
WHEREAS, because CCC was the owner of the First Component Site at the time that the
Remainder Project Agreement was executed, and CCC Nash currently is the owner of the First Component
Site, CCC and CCC Nash (as opposed to VHC) are entering into this Agreement;
WHEREAS, notwithstanding that the Remainder Project Agreement contemplates that 100%
of the approved estimated "New Improvements Increment" will be used to obtain "Public Improvements
Financing ", the parties have agreed that: (a) in lieu of using the FC Increment to obtain "Public Improvements
Financing ", construction of the Garage shall be funded with the Bond Proceeds; and (b) for purposes of the
First Component, such funding with Bond Proceeds shall constitute a "Public Improvements Financing "; and
WHEREAS, CRC, CCC, and CCC Nash have agreed to enter into this Agreement to more
specifically refine the requirements of the Remainder Project Agreement, as applicable to the First
Com ponent;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, CRC, CCC, and CCC Nash agree as follows:
1. Defined Terms.
Bonds shall mean the City of Carmel, Indiana, Redevelopment Authority Lease Rental Revenue Multipurpose
Bonds Series 2012A and 2012B (Taxable).
Bond Proceeds shall mean $2,000,000.00 of the proceeds of the Bonds, which proceeds are on deposit in
the _ Fund of that certain Project Fund created by, and defined in, the Trust Indenture. The parties
acknowledge that: (a) the total amount of the proceeds of the Bonds far exceed $2,000,000.00; and (b) for
purposes of this Agreement, "Bond Proceeds" shall mean only $2,000,000.00 of the total amount of the
proceeds of the Bonds.
Catch -Up Plan shall mean a plan pursuant to which CCC Nash will: (a) avoid falling further behind the dates
set forth in the FC Plan Schedule or the FC Construction Schedule for the design or construction of the First
Component; and (b) complete the design and construction of the First Component in accordance with (and
in no event more than 60 days behind) the date set forth in the FC Plan Schedule and the FC Construction
Schedule.
Change Order shall mean a change order executed by the Executive Director and CCC Nash finalizing the
inclusion of a change into the FC Final Plans, which change has been: (a) proposed in a Change Order
Request by CCC Nash; and (b) approved by CRC; provided that, in the case of a Permitted Change, such
change order shall be effective if executed only by CCC Nash.
Change Order Request shall mean a written request for a change to the FC Final Plans.
City shall mean the City of Carmel, Indiana.
Claims shall mean claims, liabilities, damages, losses, costs, and expenses (including, without limitation,
attorneys' fees).
Closing shall mean the closing with respect to the execution by CRC and CCC Nash of the FC Taxpayer
Agreement.
Closing Date shall mean the date of the Closing.
Committed Construction Schedule shall mean the schedule attached to the Remainder Project Agreement
as Exhibit D and defined in the Remainder Project Agreement as the "Committed Construction Schedule ".
Construction Contract shall mean the contract with the General Contractor pursuant to which the First
Component shall be constructed, which contract shall be subject to the reasonable approval of CRC.
Construction Trade shall mean any trade or other discrete aspect of construction.
Corrective Action Plan shall mean, with respect to a Garage Latent Defect: (a) a description of the corrective
action to be taken with respect to the Garage Latent Defect; and (b) the schedule for completing such
corrective action.
CRA shall mean the City of Carmel, Indiana, Redevelopment Authority.
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition
of this Agreement to be performed or observed by it receives notice specifying the nature of the failure;
provided that, if the failure is of such a nature that it cannot be remedied within 30 days, despite 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.
Disbursement Request Form shall mean that certain Disbursement Request Form attached as an exhibit
to the Trust Indenture.
Event of Default shall have the meaning set forth in Subsection 11(a).
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
FC Construction Drawings shall mean construction drawings for the First Component, which drawings shall
be consistent with: (a) the approved FC Design Development Documents and FC Construction Schedule; and
Z:\Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs\Parcel 5 -Nash Building -
Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO
8. wpd
-2-
l5Novl2
(b) the Laws.
FC Construction Schedule shall mean a detailed schedule for construction of the First Component in
accordance with the FC Final Plans. As provided in the Remainder Project Agreement, such schedule shall
be consistent with the Committed Construction Schedule, except to the extent that CRC consents otherwise.
Upon approval of the FC Construction Schedule by CRC, the FC Construction Schedule shall control in the
event of any inconsistency between the FC Construction Schedule and the Committed Construction Schedule.
FC Design Development Documents shall mean detailed design development documents for the First
Component, which documents shall be consistent with the approved FC Schematic Design Drawings and the
Laws.
FC Final Documents and Drawings shall mean final FC Schematic Design Drawings, final FC Design
Development Documents, the final FC Construction Schedule, final FC Construction Drawings, and the final
Garage Budget, as each is: (a) approved by CRC; and /or (b) modified by Change Orders; pursuant to the Plan
Refinement Process.
FC Final Plans shall mean the aggregated FC Final Documents and Drawings.
FC Increment shall mean the allocated property tax proceeds (i.e., the "increment ") that, pursuant to
IC §36- 7 -14 -9, are generated from ad valorem real property taxes levied or imposed on or against the First
Component Site as a result of the construction of the Nash Building. The FC Increment is the portion of the
"New Improvements Increment" under the Remainder Project Agreement that is attributable to the First
Com ponent.
FC Increment Estimate shall mean the estimated annual FC Increment, which estimate: (a) has been
prepared by CCC Nash and submitted to the Financial Advisor; and (b) includes the projected: (i) assessed
value of the First Component Site; and (11) tax rate that would be applied with respect to such projected
assessed value.
FC Plan Schedule shall mean the schedule in accordance with which CCC Nash shall prepare and provide
to CRC the FC Design Development Documents, the FC Construction Schedule, the FC Construction
Drawings, and the Garage Budget, which schedule is attached hereto as Exhibit B. To the extent that the FC
Plan Schedule differs from the "Plan Schedule" under the Remainder Project Agreement, the FC Plan
Schedule shall control.
FC Schematic Design Drawings shall mean detailed schematic design drawings for the First Component,
which drawings have been approved by CRC pursuant to the Remainder Project Agreement.
FC Taxpayer Agreement shall mean an agreement by and between CRC and CCC Nash pursuant to which
CCC Nash shall guarantee receipt of 100% of the FC Increment Estimate, which agreement shall:
(a) have a term equal in length to the term of the Bonds; accordingly, the term of the FC
Agreement shall continue until such time as the Bonds are repaid, refunded, redeemed,
defeased, refinanced, and /or "taken out" in full;
(b) include as an exhibit a schedule that shows, for each year during the term, the FC
Increment Estimate;
(c) obligate CCC Nash to make payments to CRC in an amount equal to the difference
between: (i) 100% of the FC Increment Estimate (as set forth on the schedule attached
thereto); and (ii) the amount of the FC Increment that actually is generated;
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
lst Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-3-
15NovI2
(d) provide that the payments due by CCC Nash thereunder are secured either by: (i) a
lien against the First Component that is similar in type to a lien for real estate taxes (including
that such lien shall have the same priority as a lien for real estate taxes); (ii) a letter of credit
that has been posted for the benefit of CRC, which letter of credit is on terms reasonably
satisfactory to CRC; or (iii) such other form of credit as reasonably is satisfactory to CRC;
(e) prohibit CCC Nash from challenging or appealing the assessed value of the First
Component, to the extent that such challenge or appeal would cause such assessed value
to be less than the projected assessed value set forth in the FC Increment Estimate.
The FC Taxpayer Agreement is a "Taxpayer Agreement" under the Remainder Project Agreement.
Final Inspection shall mean an inspection of the First Component (or a discrete aspect thereof) after
substantial completion thereof.
Financial Advisor shall mean the "Financial Advisor ", as determined pursuant to the Remainder Project
Agreement.
First Component shall mean the Nash Building, the Surface Parking Area, and the Garage, all as generally
shown on the Site Plan. The First Component is a "Component" under the Remainder Project Agreement.
First Component Site shall mean that certain real estate delineated as the "First Component Site" on the Site
Plan. The First Component Site comprises a portion of the real estate defined in the Remainder Project
Agreement as the "Parcel 5 Remainder Site ".
Force Majeure shall mean, with respect to CCC, CCC Nash, or CRC: (a) an act or omission of the other
party; or (b) any other cause that is not within the reasonable control of CCC, CCC Nash, or CRC, respectively
(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).
Garage shall mean an underground parking facility to be constructed on the First Component Site, together
with garage entrances and exits, ramps and drives, elevator lobbies, and related facilities. The Garage is a
"Parking Facility ", a "Public Improvement ", and a "Financed Improvement" under the Remainder Project
Agreement.
Garage Budget shall mean a detailed budget for the construction of the Garage in accordance with the FC
Final Plans.
Garage Latent Defect shall mean a Latent Defect with respect to the Garage. A Garage Latent Defect is both
a "Parking Facility Latent Defect" and a "Financed Improvement Latent Defect" under the Remainder Project
Agreement.
Garage Substantial Completion shall mean the that the Garage has been substantially completed in
accordance with the FC Final Plans and the Laws.
General Contractor shall mean a general contractor selected by CCC Nash and approved by CRC, which
approval shall not be withheld unreasonably.
Inspecting Architect shall mean an architect designated by CRC as its inspecting architect.
Inspection Period shall mean the period specified in an Inspection Request within which CRC and /or the
Inspecting Architect shall: (a) conduct a Sample Work Inspection, as identified in the Inspection Request; and
Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 -
Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-4-
15Nov12
(b) deliver to CCC Nash a Non - Compliance Notice, if applicable; provided that such period shall be at least
five business days after receipt of the Inspection Request from CCC Nash.
Inspection Request shall mean a written request from CCC Nash for a Sample Work Inspection, which
request shall identify the Sample Work Installation to be inspected by CRC and /or the Inspecting Architect.
Latent Defect shall mean those material defects in the construction of the First Component that: (a) are not
discovered; and (b) reasonably are not discoverable; by CRC or the Inspecting Architect during an inspection
of the First Component.
Laws shall mean all applicable laws, statutes, and /or ordinances, and any applicable governmental rules,
regulations, guidelines, orders, and /or decrees.
Master Project Agreement shall have the meaning ascribed to such term in the Remainder Project
Agreement.
Material Defect shall mean any item or element of the First Component (including, without limitation, any item
or component of a Sample Work Installation) that: (a) contains a material defect in workmanship or materials;
(b) deviates materially from the FC Final Plans; or (c) has not been performed materially in accordance with
the terms and conditions of this Agreement; provided that, with respect to a Monthly Inspection, a Permitted
Inspection, or the Final Inspection, no item or element constructed or installed in accordance with: (i) a
Sample Work Installation that has been accepted, or deemed to be accepted, by CRC; and (ii) the Laws; shall
constitute a Material Defect.
Monthly Inspection shall mean an inspection conducted by the Inspecting Architect each month during
construction of the First Component.
Nash Building shall mean a multi -story building and related facilities to be constructed on the First
Component Site, which building will house retail facilities, dining options, offices, and /or residential facilities.
The Nash Building: (a) is a "Building ", and a "New Improvement ", under the Remainder Project Agreement;
and (b) will be in the location generally labeled as "1" on the site plan attached to the Remainder Project
Agreement as Exhibit A and defined in the Remainder Project Agreement as the "Committed Site Plan ".
Non - Compliance Notice shall mean a written notice from CRC that identifies Material Defects discovered
by CRC or the Inspecting Architect during a Monthly Inspection, a Sample Work Inspection, a Permitted
Inspection, or the Final Inspection.
Parking Agreement shall mean an agreement under which CCC Nash grants to CRC a permanent, perpetual
easement for the benefit of the public under which no fewer than 20 parking spaces shall be made available
on a first -come, first - served basis in the Garage and /or on the Surface Parking Area.
Permitted Change shall mean any change to the final FC Construction Drawings that constitutes a "Permitted
Change" pursuant to the Remainder Project Agreement, so long as such change does not make it unlikely,
impracticable, or impossible for CRC to complete the Streetscape Work, or any component thereof, by the
applicable date set forth in the Streetscape Work Schedule.
Permitted Inspection shall mean, as applicable, an inspection by the Inspecting Architect and /or CRC of any
item or element of the First Component when reasonably deemed to be necessary or appropriate by the
Inspecting Architect and /or CRC.
Plan Refinement Process shall mean the process set forth in Section 7 for completing the FC Final Plans.
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-5-
15Nov12
Private Lender shall mean any financial institution making a loan to CCC Nash: (a) that is not a "Public
Improvements Financing" under the Remainder Project Agreement; and (b) the proceeds of which shall be
used to construct the portion of the First Component not financed by the Bond Proceeds.
Remainder Project Agreement shall mean that certain Project Agreement (Parcel 5 Remainder /Parcels 4
& 11) executed by and among CRC, CCC, and VHC and dated December 7, 2011.
Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for
construction and use of the First Component.
Sample Work Inspection shall mean an inspection of a Sample Work Installation.
Sample Work Installation shall mean a representative sample or typical example of a certain specified
portion of the First Component.
Site Plan shall mean the site plan attached hereto as Exhibit A.
Streetscape Work shall mean improvements to be made by CRC to the right -of -way of Rangeline Road,
which improvements are specified on Exhibit C.
Streetscape Work Schedule shall mean the schedule for completion of the Streetscape Work, which
schedule: (a) is attached hereto as Exhibit D; but (b) may be revised to the extent necessary or appropriate
for consistency with the approved FC Construction Schedule.
Surface Parking Area shall mean that portion of the First Component Site on which there will be located
approximately 40 surface parking spaces; provided that the final number of parking spaces to be located on
the Surface Parking Area shall be determined in connection with the completion of the FC Final Plans
pursuant to the Plan Refinement Process.
Trust Indenture shall mean that certain Trust Indenture executed by and between CRA and the Trustee and
dated as of
Trustee shall mean
VHC shall mean Village Housing Corporation.
2. General Obligations.
(a) First Component. Subject to the terms and conditions of this Agreement: (i) CCC
Nash shall construct the First Component on the First Component Site; and (ii) CRC shall
complete the Streetscape Work.
(b) Bond Proceeds. CRC shall cause Bond Proceeds to be disbursed to pay costs
incurred by CCC Nash in connection with the construction of the Garage pursuant to this
Agreement.
3. Closing. Subject to the terms and conditions of this Agreement, the Closing shall occur on or before
, 2012. The Closing Date shall be established mutually by CRC and CCC Nash, and the
Closing shall take place at such place as CRC and CCC Nash mutually agree. At the Closing: (a) CRC and
CCC Nash shall execute the FC Taxpayer Agreement and the Parking Agreement; and (b) CRC shall provide
to CCC Nash the Disbursement Request Form in a format that allows use by CCC Nash as contemplated
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-6-
l5NovI2
pursuant to the terms and conditions of this Agreement. By executing the FC Taxpayer Agreement and the
Parking Agreement at the Closing, CCC Nash is: (a) guaranteeing receipt of 100% of the FC Increment
Estimate; and (b) providing CRC with a permanent, perpetual easement under which no fewer than 20 parking
spaces shall be made available for public parking.
4. CCC Nash Conditions. The obligations of CCC Nash with respect to proceeding to the Closing shall
be subject to the satisfaction or waiver in writing of the following on or before the Closing Date:
(a) Bonds. CRA shall have issued the Bonds, and the Bond Proceeds shall be available
for distribution in accordance with this Agreement.
(b) FC Final Plans. The FC Final Plans shall have been completed pursuant to the Plan
Refinement Process.
(c) FC Taxpayer Agreement. CRC and CCC Nash shall have agreed on the form and
substance of the FC Taxpayer Agreement (including, without limitation, the schedule
contemplated in clause (b) of the definition of FC Taxpayer Agreement), pursuant to which
CCC Nash shall guarantee that 100% of the FC Increment Estimate actually will be received.
(d) No Breach. There shall be no breach of this Agreement by CRC that CRC has failed
to cure within the Cure Period.
(e) Representations. All of the representations and warranties set forth in
Subsection 12(a) of the Remainder Project Agreement, as extended, and applied with
respect to, this Agreement pursuant to Section 6, shall be true and accurate in all respects.
If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied,
then, as its sole and exclusive remedy, CCC Nash either may elect to: (a) waive in writing satisfaction of the
conditions and to proceed to the Closing; or (b) terminate this Agreement by a written notice to CRC; provided
that, with respect to breaches of this Agreement by CRC, CCC Nash shall have the rights and remedies set
forth in Section 11. If: (a) one of the conditions set forth in this Section is not, or cannot be, timely and
completely satisfied; and (b) CCC Nash fails to terminate this Agreement as permitted in this Section; then
such unsatisfied condition automatically shall be deemed to be waived by CCC Nash. Notwithstanding
anything to the contrary set forth herein, CCC Nash shall work diligently and in good faith to satisfy the
conditions set forth in this Section.
5. CRC Conditions. The obligations of CRC with respect to proceeding to the Closing shall be subject
to the satisfaction or waiver in writing of the following on or before the Closing Date:
(a) Bonds. CRA shall have issued the Bonds, and the Bond Proceeds shall be available
for distribution in accordance with this Agreement.
(b) Financial Ability. CCC Nash shall have established, to the reasonable satisfaction
of CRC, that CCC Nash has adequate funds (loan proceeds, equity investments, and /or cash
on hand, including the Bond Proceeds) to construct the First Component.
(c) FC Final Plans. The FC Final Plans shall have been completed pursuant to the Plan
Refinement Process.
(d) FC Taxpayer Agreement. CRC and CCC Nash shall have agreed on the form and
substance of the FC Taxpayer Agreement (including, without limitation, the schedule
contemplated in clause (b) of the definition of FC Taxpayer Agreement), pursuant to which
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-7-
I5Novl2
CCC Nash shall guarantee that 100% of the FC Increment Estimate actually will be received.
(e) No Breach. There shall be no breach of this Agreement by CCC or CCC Nash that
CCC or CCC Nash has failed to cure within the Cure Period
(f) Representations. All of the representations and warranties set forth in
Subsection 12(b) of the Remainder Project Agreement, as extended, and applied with
respect to, this Agreement and /or CCC Nash pursuant to Section 6, shall be true and
accurate in all respects.
If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied,
then, as its sole and exclusive remedy, CRC either may elect to: (a) waive in writing satisfaction of the
conditions and to proceed to the Closing; or (b) terminate this Agreement by a written notice to CCC and CCC
Nash; provided that, with respect to breaches of this Agreement by CCC or CCC Nash, CRC shall have the
rights and remedies set forth in Section 11, Section 12, and /or Section 13, as applicable. If: (a) one of the
conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (b) CRC fails to
terminate this Agreement as permitted in this Section; then such unsatisfied condition automatically shall be
deemed to be waived by CRC. Notwithstanding anything to the contrary set forth herein, CRC shall work
diligently and in good faith to satisfy the conditions set forth in this Section.
6. Representations and Warranties. Each of CRC and CCC: (a) reaffirms the representations and
warranties made by it pursuant to Section 12 of the Remainder Project Agreement; and (b) agrees that such
representations and warranties extend, and apply with respect, to this Agreement. CCC Nash agrees that
it shall be deemed to have made (with respect to CCC Nash) the representations and warranties set forth in
Subsection 12(b) of the Remainder ProjectAgreement; accordingly, such representations and warranties shall
be deemed to be made by CCC Nash in this Section as though such representations and warranties were set
forth herein in full.
7. Plan Refinement.
(a) FC Schematic Design Drawings. CRC has approved the FC Schematic Design
Drawings pursuant to the Remainder Project Agreement. The FC Schematic Design
Drawings are: (i) listed on, or attached as, Exhibit E; and (ii) final schematic design drawings
for the First Component, subject to modifications by Change Orders.
(b) FC Design Development Documents. In accordance with the FC Plan Schedule,
CCC Nash, at its cost and expense, shall submit the FC Design Development Documents
and the FC Construction Schedule to CRC for its review and approval. The procedure,
including the time frames, set forth in Subsection 5(b) of the Remainder Project Agreement
shall apply with respect to the review and approval (or rejection) of the FC Design
Development Documents. Upon approval of all of the FC Design Development Documents
with respect to any Construction Trade, such FC Design Development Documents shall be
final as to such Construction Trade, subject to modifications by Change Orders. Upon
approval of the FC Construction Schedule, such FC Construction Schedule shall be the final
construction schedule with respect to construction of the First Component, subject to
modifications by Change Orders.
(c) FC Construction Drawings. In accordance with the FC Plan Schedule, CCC Nash,
at its cost and expense, shall submit to CRC for its review the FC Construction Drawings with
respect to each Construction Trade. Thereafter, such FC Construction Drawings shall be
final construction drawings with respect to the applicable Construction Trade, subject to
modifications by Change Orders.
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-8-
15Novl2
(d) Garage Budget. In accordance with the FC Plan Schedule, CCC Nash, at its cost
and expense, shall submit to CRC for its review the Garage Budget. Thereafter, such
Garage Budget shall be the final budget with respect to construction of the Garage, subject
to modifications as necessary or appropriate as a result of any Change Order.
(e) Resubmitted Documents. If, at any stage of the Plan Refinement Process, CRC,
rather than approving any drawings, documents, or schedules, instead rejects any drawings,
documents, or schedules, then the terms and conditions of Subsection 5(d) of the Remainder
Project Agreement shall apply with respect to revising and resubmitting such drawings,
documents, or schedules, including that, upon approval of the resubmitted drawings,
documents, or schedules, the resubmitted drawings, documents, or schedules shall become
part of the FC Final Plans, subject to modifications by Change Orders. Notwithstanding the
involvement of CRC in the Plan Refinement Process, CCC Nash shall be responsible for
insuring that revisions submitted by CCC Nash to CRC in writing, and approved by CRC, are
implemented in the FC Final Plans.
(f) FC Final Plans. Upon completion of the FC Final Documents and Drawings through
the Plan Refinement Process, the aggregated FC Final Documents and Drawings shall
constitute the complete FC Final Plans, subject to modification by Change Orders. All
references herein to the FC Final Plans shall be deemed to be references to the FC Final
Documents and Drawings, until such time as all of the FC Final Documents and Drawings
are completed; provided that, when all of the FC Final Documents and Drawings are
completed, all references herein to the FC Final Plans shall be deemed to be references to
the FC Final Plans, as modified by Change Orders.
(g) Changes. If CCC Nash desires to make any changes to the FC Final Plans, other
than a Permitted Change, then: (i) CCC Nash shall submit to CRC a Change Order Request
for its review and approval; and (ii) the terms and conditions of Subsection 5(f) of the
Remainder Project Agreement shall apply with respect to the review and approval (or
rejection) of the change proposed in such Change Order Request. If CRC approves a
Change Order Request, then CRC and CCC Nash shall execute a Change Order.
Notwithstanding anything to the contrary set forth herein: (i) CCC Nash shall not be required
to obtain CRC's approval in connection with a Permitted Change; and (ii) a Change Order
with respect to a Permitted Change shall be effective if executed only by CCC Nash; provided
that, with respect to each Permitted Change, CCC Nash shall submit a Change Order
Request to CRC for its review.
(h) Declaration Approvals. CRC confirms its obligation pursuant to Subsection 5(g) of
the Remainder Project Agreement to vote, as Declarant under the City Center Declaration
and as owner of certain parcels within the City Center, for approval by the Architectural
Review Committee of any drawings, documents, or schedules approved by CRC pursuant
to this Section. The capitalized terms "City Center Declaration ", "City Center ", and
"Architectural Review Committee" are defined in the Remainder Project Agreement.
(i) Review Panel. CCC Nash confirms the right of CRC pursuant to Subsection 5(h) of
the Remainder Project Agreement to delegate all or any part of its review and approval or
rejection obligations pursuant to this Section to the "Plan Review Panel ", as defined in the
Remainder Project Agreement.
(j) Design Responsibility. Notwithstanding that CRC: (i) has review and approval rights
in connection with the Plan Refinement Process; and (ii) otherwise may participate in the
Plan Refinement Process (including that CRC may hire consultants or other professionals
Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement\PROJECT AGREEMENT.9 TO
8. wpd
-9-
15Nov12
in connection therewith); CCC Nash shall be responsible for the design and engineering of
the First Component, and, as between CRC and CCC Nash, CCC Nash assumes
responsibility for defects and deficiencies in the design and engineering of the First
Component (including, without limitation, defects in the FC Final Documents and Drawings);
provided that, nothing in this Subsection shall be deemed to prohibit CCC Nash from
proceeding against any of the engineers, architects, or other consultants in the event of any
design or engineering defects or deficiencies.
(k) Construction. CCC Nash shall construct the First Component: (i) in a good and
workmanlike manner; (ii) in accordance with the FC Final Plans (as modified by any Change
Orders); and (iii) in compliance with the Laws; provided that, prior to commencing
construction of the First Component, CCC Nash: (i) at its cost and expense, shall obtain and
submit to CRC for its review the Required Permits; and (ii) shall provide the Construction
Contract to CRC for its review and approval, which approval shall not be withheld
unreasonably.
(1) Streetscape. CRC shall complete the Streetscape Work: (i) in a good and
workmanlike manner; (ii) in accordance with the Streetscape Work Schedule; and (iii) in
compliance with the Laws.
(m) Owner. Upon completion of the First Component (including the Garage and the
Surface Parking Area: (i) Developer (as opposed to CRC, the City, or any agency or
instrumentality of the City) shall be the owner of the First Component (including the Garage
and the Surface Parking Area); and (ii) as between CRC and Developer, Developer shall
have the right to control use of all of the parking spaces in the Garage and on the Surface
Parking Area, subject to the rights of CRC pursuant to the Parking Agreement (which rights
consist of a permanent, perpetual easement under which no fewer than 20 parking spaces
shall be made available for public parking). Accordingly: (i) Developer, as the owner of the
First Component (including the Garage and the Surface Parking Area), shall be responsible
for all costs and expenses in connection with the use and operation of the First Component
(including the Garage, the Surface Parking Area, and all drives and access ways located on
the First Component Site), including, without limitation, all costs and expenses to maintain
and insure the Garage, the Surface Parking Area, and all drives and access ways located on
the First Component Site; and (ii) CRC shall have no responsibility for costs and expenses
in connection with the use and operation of the Garage, the Surface Parking Area, and /or any
drives and /or access ways located on the First Component Site, including, without limitation,
that CRC shall have no responsibility for the costs and expenses to maintain and insure the
Garage, the Surface Parking Area, and /or any drives and /or access ways located on the First
Component Site.
8. Public Improvements Financing.
(a) Confirmation. As provided in the definition thereof: (i) the Garage constitutes a
"Public Improvement" under the Remainder Project Agreement; and (ii) the Nash Building
constitutes a "New Improvement" under the Remainder Project Agreement.
(b) FC Increment Estimate. As contemplated by the terms and conditions of
Subsection 4(b) of the Remainder Project Agreement, CCC Nash has: (i) prepared the FC
Increment Estimate; and (ii) provided the FC Increment Estimate to CRC and the Financial
Advisor. CRC has approved the FC Increment Estimate based upon CCC Nash's agreement
to execute the FC Taxpayer Agreement, which, in effect, "guarantees" the FC Increment
Estimate by obligating CCC Nash to pay any difference between: (i) the amount of the FC
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs\Parcel 5 -Nash Building -
Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-10-
15Nov 12
Increment Estimate; and (ii) the amount of the FC Increment that actually is generated. For
purposes of being absolutely, explicitly clear, and as would be the case under the Laws
regardless of any such acknowledgment and agreement, CCC Nash acknowledges and
agrees that, to the extent that the FC Increment actually generated exceeds the FC
Increment Estimate, such excess FC Increment shall belong to, and be the property of, CRC.
Accordingly, it also shall be the case that, if the Bonds are repaid, refunded, redeemed,
defeased, refinanced, and /or "taken out" in full prior to the scheduled date for such
repayment, refund, redemption, defeasance, refinance, and/or "take out ", then, from and after
the actual date on which the Bonds are repaid, refunded, redeemed, defeased, refinanced,
and /or "taken out" in full, all FC Increment shall belong to, and be the property of, CRC.
(c) Bond Proceeds. The Bond Proceeds shall be used only to construct the Garage in
accordance with the FC Final Plans; provided that, if the cost to construct the Garage is less
than the total amount of the Bond Proceeds, then the remaining Bond Proceeds may be used
to construct, in accordance with the FC Final Plans, public improvements that constitute
"Public Improvements" under the Remainder Project Agreement. All portions of the Garage
and other "Public Improvements" that are to be funded by disbursements of Bond Proceeds
shall be publicly bid in accordance with the Laws.
(d) Public Improvements Financing. The parties intend for the use of the Bond
Proceeds to constitute a "Public Improvements Financing ", notwithstanding that there is no
leveraging of the FC Increment in connection therewith. Accordingly, with respect to the First
Component, the terms and conditions of the Remainder Project Agreement with respect to
"Public Improvements Financing" and the obligations of CRC in connection therewith shall
be interpreted as though such terms and conditions referred to a financing consistent with
the terms and conditions applicable with respect to the Bond Proceeds (as opposed to a
financing obtained by leveraging the FC Increment). Accordingly: (i) the terms and conditions
of Subsection 4(c) of the Remainder Project Agreement shall not be applicable with respect
to the First Component; (ii) as contemplated pursuant to Subsection 4(e) of the Remainder
Project Agreement, in no event shall CRC be obligated to expend any funds on the
construction or acquisition of the Garage in addition to the Bond Proceeds, regardless of the
actual costs incurred by CCC Nash in connection with the construction and /or completion of
the Garage; and (ii) to the extent that the cost to construct and /or complete the Garage
exceeds the Bond Proceeds, CCC Nash shall be responsible for such excess cost.
(e) Assessment. As provided in Subsection 4(f) of the Remainder Project Agreement,
CCC Nash shall be responsible for ensuring that the First Component is fully assessed for
property tax purposes on or before the applicable date set forth in the FC Construction
Schedule.
(f) First Disbursement. As a condition to the first disbursement of Bond Proceeds, it
shall be the case that:
(i)
The Closing has occurred;
(i) CCC Nash has delivered to CRC a certification that all of the
information set forth in the Garage Budget is true, correct, and accurate;
(ii) CCC Nash has submitted to CRC, and CRC shall have approved,
the Construction Contract;
(iv) CCC Nash has obtained (or CRC shall have determined that CCC
Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
l5Novl2
Nash will be able to obtain) all of the Required Permits; and
(v) The requirements of Subsection 8(i) have been satisfied.
(g) Subsequent Disbursements. As a condition to all disbursements of funds
subsequent to the first disbursement of Bond Proceeds, it shall be the case that, as of the
date of the disbursement request, construction of the Garage is proceeding in compliance
with the FC Construction Schedule.
(h) Final Disbursement. As a condition to the final disbursement, it shall be the case
that, as of the date of the final disbursement request:
(I) CRC has received a certification by the General Contractor that:
(A) Garage Substantial Completion has occurred; (B) with respect to the
Garage, it has obtained final lien waivers from the "first layer" of
subcontractors that otherwise would have the right to claim valid mechanics'
or similar liens against all or a portion of the First Component Site, subject
only to payment from the final disbursement of Bond Proceeds; and
(C) upon disbursement of the final Bond Proceeds: (1) payment will be
made to the applicable parties; and (2) after such, all parties will be paid in
full for all work in connection with the construction of the Garage;
(ii) CRC has received a certification from CCC Nash's architect that:
(A) Garage Substantial Completion has occurred; and (B) the Garage has
been constructed in substantial accordance with the FC Final Plans and the
Laws;
(iii) CRC has received a copy of the "punch- list "; provided that 120% of
the cost to complete such "punch- list" items shall be withheld from the final
disbursement of Bond Proceeds and paid to CCC Nash upon completion
thereof; and
(iv) The requirements of Subsection 8(i) have been satisfied.
(I) Disbursements Generally. In addition to any other requirements set forth in this
Section, all requests for disbursements of Bond Proceeds shall:
(I) be made on the Disbursement Request Form, and include all
submissions required by the terms of the Disbursement Request Form;
(ii) include a certification by the General Contractor that: (A) it has
obtained lien waivers from the "first layer" of subcontractors that otherwise
would have the right to claim valid mechanics' or similar liens against all or
a portion of the First Component Site through the date of the previous
disbursement; and (B) upon disbursement of the requested Bond Proceeds:
(1) payment will be made to the applicable parties; and (2) after such
payments, all costs incurred to the date of such request in connection with
the construction of the Garage will be paid in full;
(iii) include a certification by the General Contractor that, after payment
of the costs to be paid out of such disbursement, sufficient Bond Proceeds
will remain to complete the construction of the Garage; and
Z:\Documents \Shoup, Jenny \City of Carmel\Parcels 2- 5 -7 -4 -1 I -12-
Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-12-
15Nov12
(iv) include a certification by CRC that, pursuant to Section 9, it has
inspected and approved the portions of the Garage completed through the
date of the disbursement request.
(j) General. At such time as CRC determines that it has received all items required for
a disbursement, CRC shall notify the Trustee of such determination so that the Trustee can
disburse the Bond Proceeds in accordance with the terms and conditions of the Trust
Indenture. CRC shall have the right to require that retainage be withheld in accordance with
the terms and conditions of the Construction Contract. All retainage shall be paid after the
final disbursement of Bond Proceeds and at such time as copies of final lien waivers are
provided to CRC.
9. Inspection.
(a) Monthly Inspections. Each month during construction of the First Component, the
Inspecting Architect, at CCC Nash's cost and expense, shall conduct a Monthly Inspection;
provided that the Inspecting Architect shall provide reasonable written notice to CCC Nash
prior to each Monthly Inspection. After a Monthly Inspection, CRC may deliver to CCC Nash
a Non - Compliance Notice; provided that, upon receipt of a Non - Compliance Notice, CCC
Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects
identified in the Non - Compliance Notice, except and to the extent that any such Material
Defects previously have been accepted, or deemed to have been accepted, by CRC. Upon
receipt of written demand, CCC Nash shall pay the Inspecting Architect's fee for each
Monthly Inspection. At CCC Nash's election, the Inspecting Architect shall: (i) schedule the
Monthly Inspections to coordinate with draw requests submitted by CCC Nash to the Trustee
and /or any Private Lender that is identified to CRC; and (ii) provide to CCC Nash, the
Trustee, and /or any Private Lender (to the extent that an address therefor is provided to
CRC) an inspection report with respect to Monthly Inspection.
(b) Sample Work Inspection. If CCC Nash delivers an Inspection Request to CRC, then,
within the Inspection Period, CRC and /or the Inspecting Architect, at CCC Nash's cost and
expense, shall: (i) conduct a Sample Work Inspection of the Sample Work Installation
identified in the Inspection Request; and (ii) deliver to CCC Nash, if applicable, a
Non - Compliance Notice; provided that: (i) upon receipt of a Non - Compliance Notice with
respect to such Sample Work Installation, CCC Nash shall correct, or cause to be corrected,
as soon as is practicable, all Material Defects identified in the Non - Compliance Notice,
except and to the extent that any such Material Defects previously have been accepted, or
deemed to have been accepted, by CRC; and (ii) all items or components of such Sample
Work Installation with respect to which no Material Defects are identified in a
Non - Compliance Notice shall be deemed to be accepted by CRC. Any portion of the First
Component subsequently constructed or installed in accordance with: (i) a Sample Work
Installation that has been accepted, or deemed to be accepted, by CRC; and (ii) the Laws;
shall be deemed to be accepted by CRC.
(c) Permitted Inspection. Upon reasonable written notice delivered to CCC Nash, which
notice shall specify the portion of the construction to be inspected, CRC and /or the Inspecting
Architect may perform a Permitted Inspection. After a Permitted Inspection, CRC may deliver
to CCC Nash a Non - Compliance Notice; provided that, upon receipt of a Non - Compliance
Notice, CCC Nash shall correct, or cause to be corrected, as soon as is practicable, all
Material Defects identified in the Non - Compliance Notice, except and to the extent that any
such Material Defects previously have been accepted, or deemed to have been accepted,
by CRC.
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
1st Component \Project Agreement\PROJECT AGREEMENT.9 TO
8.wpd
-13-
15Nov12
(d) Final Inspection. If CCC Nash delivers to CRC a written request for a Final
Inspection, then, on or before the later of the date that is five business days after: (i) receipt
by CRC of such request; or (ii) the date specified in such request as the substantial
completion date; CRC and /or the Inspecting Architect, at CCC Nash's cost and expense,
shall: (i) conduct the Final Inspection; and (ii) deliver to CCC Nash, if applicable, a
Non - Compliance Notice; provided that: (A) upon receipt of a Non - Compliance Notice, CCC
Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects
identified in the Non - Compliance Notice, except and to the extent that any such Material
Defects previously have been accepted, or deemed to have been accepted, by CRC; and
(B) all items or components of the First Component with respect to which no Material Defects
are identified in a Non - Compliance Notice shall be deemed to be accepted by CRC. Upon:
(i) correction of all Material Defects identified in the Non - Compliance Notice; or (ii) deemed
acceptance by CRC of the First Component; CRC shall have no further inspection rights with
respect to the construction of the First Component.
(e) Latent Defects. Notwithstanding anything to the contrary set forth herein, no
acceptance, or deemed acceptance, by CRC pursuant to this Section shall be applicable with
respect to any Latent Defects. An acceptance, or deemed acceptance, by CRC pursuant to
this Section shall not mean that CRC has accepted, or CCC Nash has been relieved of,
responsibility for: (i) compliance with the Laws; (ii) the proper application of construction
means or methods; or (iii) correcting any portion of the First Component if it later is
determined that such portion is inconsistent with the proper completion of a subsequent
portion of the First Component. An acceptance, or deemed acceptance, by CRC pursuant
to this Section shall not be binding on any other governmental authority, and any inspections
performed by CRC or the Inspecting Architect pursuant to this Section shall not preclude, or
be deemed to be in substitution of, inspections required or permitted to be performed by
other governmental authorities.
(f)
Garage Latent Defects.
(i) CCC Nash shall be obligated, at its expense, to correct any Garage
Latent Defects that are discovered, notwithstanding that CRC may have
acquired fee simple title to, and /or received full possession of, the Garage.
(ii) If, at any time after the Final Inspection, either CRC or CCC Nash
discovers a Garage Latent Defect, then CRC or CCC Nash, as applicable,
promptly shall notify the other party in writing of the existence of such
Garage Latent Defect. Promptly after delivering or receiving such notice, as
applicable, and in all events within 30 days thereafter, CCC Nash shall
prepare, and submit to CRC for its approval, a Corrective Action Plan.
(iii) Within ten days after CRC receives the Corrective Action Plan, CRC
shall deliver to CCC Nash written notice that it approves or rejects the
Corrective Action Plan; provided that: (A) CRC shall not withhold its approval
unreasonably; and (B) if CRC rejects all or any part of the Corrective Action
Plan, then such notice shall: (1) specify the part or parts that CRC is
rejecting; and (2) include the specific basis for such rejection.
(iv) If CRC reasonably rejects all or any part of the Corrective Action
Plan, then, within ten days after CCC Nash receives notice from CRC of
such rejection, CCC Nash shall: (A) revise the Corrective Action Plan; and
(B) resubmit the Corrective Action Plan to CRC. Within ten days after CRC
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement\PROJECT AGREEMENT.9 TO
8.wpd
-14-
15Nov12
receives the resubmitted Corrective Action Plan, CRC shall deliver to CCC
Nash written notice that it approves or rejects the resubmitted Corrective
Action Plan; provided that: (A) CRC shall not withhold its approval
unreasonably; and (B) if CRC rejects all or any part of the Corrective Action
Plan, then such notice shall: (1) specify the part or parts that CRC is
rejecting; and (2) include the specific basis for such rejection. This process
shall continue until CRC has approved the Corrective Action Plan.
(v) CCC Nash shall be obligated to carry out the approved Corrective
Action Plan in accordance with the schedule that is a part of such approved
Correction Action Plan.
(g) General. In the case of an inspection by CRC and /or the Inspecting Architect
pursuant to this Section, CRC and /or the Inspecting Architect shall: (i) comply with all health
and safety rules of which CRC has been informed that have been established for personnel
present on the construction site; and (ii) coordinate the inspections so that the inspections
do not interfere with the performance of construction by CCC Nash. CCC Nash shall have
the right to accompany, and /or to have its construction manager accompany, CRC and /or its
Inspecting Architect during any inspection pursuant to this Section.
(h) Copies. As required by the Remainder Project Agreement, CCC Nash shall:
(i) deliver promptly to CRC's counsel copies of all draw requests delivered to the Trustee
and /or any Private Lender; and (ii) cause the Trustee and any Private Lender to deliver to
CRC's counsel, promptly upon receipt thereof, copies of inspection reports obtained by the
Trustee or such Private Lender, respectively. All draw requests and inspection reports
received by CRC's counsel pursuant to this Subsection shall be subject to the attorney /client
privilege between CRC's counsel and CRC.
10. Insurance. During construction of the First Component, CCC Nash shall maintain the policies of
insurance required pursuant to Section 8 of the Remainder Project Agreement, which policies shall satisfy the
requirements of such Section. CCC Nash shall deliver to CRC certificates of the required insurance policies,
executed by the insurance company or the general agency writing such policies.
11. Default.
(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 days after such
payment is due; and (ii) with respect to any other obligation, if such failure is not cured within
the Cure Period.
(b) Remedies. Whenever an Event of Default occurs, the non- defaulting party may take
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 by the defaulting party of any term
or condition of this Agreement (including, without limitation, the right to specifically enforce
any such term or condition, it being acknowledged and understood by the parties that
monetary damages are not an adequate remedy for the failure of either party to observe
and /or perform 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
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building -
lst Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-15-
l5Novl2
enforcing, this Agreement, then the defaulting party shall reimburse the non - defaulting party
for all such costs and expenses, together with interest at the rate of 12% per annum.
(c) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to,
a non - defaulting party is intended to be exclusive of any other available right or remedy,
unless otherwise expressly stated (for example, as stated in Section 12 or Section 13);
instead, each and every such right or remedy shall be cumulative and in addition to every
other right or remedy given under this Agreement or now or hereafter existing at law or in
equity. No delay or omission by a non - defaulting party to exercise any right or remedy. upon
any Event of Default shall impair any such right or remedy, or be construed to be a waiver
thereof, and any such right or remedy may be exercised from time to time, and as often as
may be deemed to be expedient. To entitle a non - defaulting party to exercise any of its rights
or remedies, it shall not be necessary for the non - defaulting party to give notice to the
defaulting party, other than such notice as may be required by this Section or by the Laws.
12. Recapture by CRC.
(a) Recapture Right. If construction of the First Component has not commenced as of
the date that is 18 months after the date specified in the approved FC Construction Schedule,
then the terms and conditions of Subsection 10(a) of the Replacement Project Agreement
shall apply; provided that all references to a portion of the "Project Site" and /or a
"Component" shall be deemed to be references to the First Component Site and /or the First
Component, respectively. If CRC exercises its right to require reconveyance of the First
Component Site to CRC pursuant to Subsection 10(a) of the Replacement Project
Agreement, then: (i) in addition to the automatic termination of the Remainder Project
Agreement with respect to the First Component Site, this Agreement automatically shall
terminate and be of no further force or effect; and (ii) neither CCC nor CCC Nash shall have
any further rights hereunder with respect to the First Component Site.
(b) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights
set forth in this Section and the FC Taxpayer Agreement shall be the sole remedies available
to CRC for the failures and /or delays specified in this Section; provided that CRC shall have:
(i) the remedies of specific performance and /or injunction to ensure compliance with the
terms and conditions of this Section; and (ii) the right to recover all costs and expenses
incurred in connection with exercising the remedies permitted pursuant to this Section.
(c) Reconveyance Closing. If CRC elects to require the reconveyance of the First
Component Site in accordance with the terms and conditions of this Section, then the terms
and conditions of Subsection 10(c) of the Remainder Project Agreement shall apply.
13. Construction Delay.
(a) Catch -Up Plans If CCC Nash falls 60 or more days behind the applicable dates set
forth in the FC Plan Schedule or the FC Construction Schedule for the design or construction
of the First Component, then the terms and conditions of Subsection 11(a) of the Remainder
Project Agreement shall apply; provided that all references to a "Component" and /or a
"Component Catch -Up Plan" shall be deemed to be references to the First Component
and /or a Catch -Up Plan, respectively.
(b) Costs. CCC Nash shall be responsible for all costs and expenses to prepare and
implement a Catch -Up Plan (including costs and expenses incurred by CRC pursuant to this
Section).
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building -
I st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-16-
l5Novl2
(c) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights
set forth in this Section and the FC Taxpayer Agreement shall be the sole remedies available
to CRC for the failures and /or delays specified in this Section; provided that CRC shall have:
(i) the remedies of specific performance and /or injunction to ensure compliance with the
terms and conditions of this Section; and (ii) the right to recover all costs and expenses
incurred in connection with exercising the remedies permitted pursuant to this Section.
14. Mutual Indemnification. Each of CRC and CCC: (a) reaffirms its indemnification obligations
pursuant to Section 13 of the Remainder Project Agreement; and (b) agrees that such indemnification
obligations extend, and apply with respect, to this Agreement. CCC Nash agrees that it shall be deemed to
have incurred the indemnification obligations set forth in Subsection 13(b) of the Remainder Project
Agreement; accordingly, such indemnification obligations shall be deemed to be undertaken by CCC Nash
in this Section as though such indemnification obligations were set forth herein in full. Notwithstanding
anything to the contrary set forth herein, the obligations of the parties under Section 13 of the Remainder
Project Agreement (and, accordingly, this Section) shall survive the termination of the Remainder Project
Agreement and this Agreement.
15. Assignment. The terms and conditions of Section 14 of the Remainder Project Agreement shall
apply with respect to the assignment of this Agreement including that, consistent with the terms and conditions
of Section 14 of the Remainder Project Agreement, CCC Nash may sell the Nash Building (or units of space
therein) after completion of the First Component.
16. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in
writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by
facsimile or email, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with
confirmation of receipt, addressed as follows: to CRC at 30 West Main Street, Suite 220, Carmel, Indiana
46032, Facsimile: 317 - 844 -3498, email: lolds @carmel.in.gov, Attn: Les Olds, with a copy to: Karl P. Haas,
Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204,
Facsimile: 317 - 231 -9900, email: kph@wshlaw.com; and to CCC and CCC Nash at 770 3rdAvenue Southwest,
Carmel, Indiana 46032, Facsimile: 317 - 587 -0340, email: rbrown @pedcor.net, Attn: Ron Brown. Either party
may change its address for notice from time to time
17. Authority. Each undersigned person executing this Agreement on behalf of CRC, CCC, and CCC
Nash represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary
action of CRC, CCC, and CCC Nash, 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 CRC, CCC, and CCC Nash, respectively; and (d) this
Agreement is the valid and binding obligation of CRC, CCC, and CCC Nash, respectively, that, subject to the
Laws, is enforceable in accordance with its terms.
18. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed
in, or prevented from, observing or performing any of its obligations under, or satisfying any term or condition
of, this Agreement as a result of Force Majeure; then: (a) the party asserting Force Majeure shall deliver
written notice to the other party; (b) such observation, performance, or satisfaction shall be excused for the
period of days that such observation, performance, or satisfaction is delayed or prevented; and (c) the
deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period.
19. Miscellaneous. Subject to Section 15 (and Section 14 of the Remainder Project Agreement), this
Agreement shall inure to the benefit of, and be binding upon, CRC, CCC, and CCC Nash, and their respective
successors and assigns. This Agreement: (a) may be executed in separate counterparts, each of which shall
be an original, but all of which together shall constitute a single instrument; (b) shall be governed by, and
construed in accordance with, the laws of the State of Indiana; and (c) may be modified only by a written
Z:\Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12-
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-17-
l5Nov12
agreement signed by all of CRC, CCC, and CCC Nash. 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. All Exhibits referenced in this Agreement are attached hereto
and incorporated herein by reference. All proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes
Hamilton County, Indiana. CCC and CCC Nash waive, to the extent permitted under applicable law: (a) the
right to a trial by jury; and (b) any right CCC or CCC Nash may have to: (i) assert the doctrine of "forum non
conveniens "; or (ii) object to venue.
IN WITNESS WHEREOF, CRC, CCC, and CCC Nash have executed this Agreement as of
the date set forth above.
Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 -
Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building-
1st Component \Project Agreement \PROJECT AGREEMENT.9 TO
8.wpd
-18-
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
CARMEL CITY CENTER, LLC
By:
Dolores M. Krohne, Senior Vice-President
CCC NASH, LLC
By:
Dolores M. Krohne, Senior Vice-President
15Nov12
Exhibit A Site Plan
Exhibit B
INDEX TO EXHIBITS
FC Plan Schedule (schedule in accordance with which CCC submits FC Design
Development Documents, FC Construction Schedule, FC Construction Drawings,
and Garage Budget)
Exhibit C CRC Streetscape Work description
Exhibit D Streetscape Work Schedule
Exhibit E Schematic Design Drawings (or list thereof)
Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 -
Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building -
lst Component\Prdject Agreement\PROJECT AGREEMENT.9 TO
8.wpd
I5NovI2
4p
11111111J11111111111111
City Center Orly.
MiSitfte"
raw V* trie,9
;ft
date: 03 -21 -20 2
THE NASH BUIL It ONG (Building
Exhibit B
1. Design Development documents have been review and approved by the
Carmel Redevelopment Commissions Plan Review Panel on June 15, 2011.
PRP Meeting minutes attached.
2. Reviewed Construction Drawings with Signature Construction on 7/18/2012
approved by the Executive Director, Les Olds.
3. Construction to start on 3/1/13 with a completion date of 5/1/14.
I I I I I I I II I 1 I II I I I RI LI
City Center Drive
date: 03-21-2012
THE ASH ti DING (Building D)
"ipc+ •
(2..■1.i:
Exhibit D
Completion of the Streetscape Work will coincide with the construction of the First
Component pursuant to the FC Construction Schedule; provided that all
Streetscape Work consisting of ingress and egress walks shall be in place prior to
the issuance of the certificate of occupancy for the First Component.
E Ow%
dote:03-21-2012
G LEVEL
11-1E NASH BUILDING D)
ea
tj
S558. 154L
RANO6LINE RANGEUHE
date:03-21-2012
BUILDING ADDRESS:
850 SOUTH RANGEUNE
FIRST FL
ift
OR
T1-4E NASH BUILDING
dote: 03-21 -20 12
SECO 1
FLOOR
THE NASH BUILDING tBuildin&
r r) 1'. 1.
THRD FLOOR
date: 03 .1-2012 THE NASH BWLDING (Building p)
•
Iu
..4424:041.16t17
Unit A
date: 03-21 -2012
•
'1. C -
..f.v.E.C,A•,`,
THE OMASH BUILDING (Building D) ,;2
A svi
t.,
oWia— V115,
vg;
BEORO
HALL
A1.12
DINING ROOM
BATH
M4
CLOSET
M.11
LAUNO
A .10
KITCHEN
A1.0
Wk.fetiK:4,..04.11,4%PiVf:k,AVA,,iet,lat4arltqW1,5A
Unit A-1
date: 03 -2 I -20 2 THE ASH U1LDING (Building, p).
(1 A
TERRACE
3i.42M.A4:
Wpagt7=WARIAAMEli,, A=M531.44.41
DEDROO
A2-11
BEDIQOM
M
- _ -
A2-17
CLOSET
A2-11
HALL
A2-11
"5:4;444,7rfik.7"..tATY
OINING ROO
A2-2
LAUNDRY
M.14
date: 03-2 1 -2012
KITCHEN HALL
A1-1 A24
A4114 riii
Unit A-2
THE NASH BURLD1NG (Building o)
"110%.vntr,
dote: 03 -21 -2O2
-44,?4,1vOila,-4e4I.At*'=
Unit B
THE NASH BUSLDING (Building D)
*0,1:4741ta-afrAWM:fa**1701M1,4V
0,t
4*VeliWW,WAviiikVotiMmOy,,t,Vi
Atx
•
-
MHO R
C4
KRCHEN
C.9
HALL
BEDROOM
C-3
uu
C-11
r-
HEM
loadtMtglin4MYRO-
OPZMN)
L.
CLOSET
C.S
1
uinumn
c.to
Unit C
:!!'"..7----.7-';r7r
date: 03 21 -20 12 THE NASH BUILDING (Building._p)
.hztair--tiftVAW4, 4.tf
ti.U70;14,13P0.:WgiMM.VilrinigniM
• !NINO R
1:1•Z
KITCHEN
b•t•
BEDROOM
04
ur
•
5,0,,,,pP414AMOPirraa
LAUNDRY
01D
:45it:Nai'etp;%til-A„Nt-174*
Unit D
date: 03-21 -.20 I 2
THE NASH BUILDING (Building D)
HALL
£.11
ROOM
M#VAR*0:4M*
HALL
E-12
KITCHEN
fillE11111
Unit E
date: 03-21-2012 THE NASH BUOLDONG (Building D)
ARA-11: T.
RESOLUTION NO. 2012 -6
RESOLUTION OF THE CITY OF CARMEL REDEVELOPMENT COMMISSION
APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF A PROPOSED
LEASE BETWEEN THE CITY OF CARMEL REDEVELOPMENT AUTHORITY AND
THE CITY OF CARMEL REDEVELOPMENT COMMISSION, AND AUTHORIZING
CERTAIN MATTERS RELATED THERETO
WHEREAS, the City of Carmel Redevelopment Authority (the "Authority ") has been
created pursuant to Indiana Code 36 -7 -14.5 as a separate body corporate and politic, and as an
instrumentality of the City of Carmel, Indiana (the "City "), to finance local public improvements
for lease to the City of Carmel Redevelopment Commission (the "Commission "); and
WHEREAS, the Authority has adopted, or is expected to adopt, a resolution (a)
approving a proposed lease agreement (the "Lease ") between the Authority, as lessor, and the
Commission, as lessee, for the lease of the Leased Premises (as defined in the Lease), and (b)
indicating its intent to issue one or more series of its lease rental revenue bonds, all or any
portion of which may be taxable or tax - exempt for federal income tax purposes, in the maximum
original principal amount of $195,000,000 (collectively, the "Bonds "), to provide funds for the
purposes of: (1) financing the acquisition by the Authority from the City of the Leased Premises,
and the use by the City of the proceeds of such sale to (A) refund, or cause to be refunded, all or
a portion of the outstanding obligations of the City and /or the District, identified in Ordinance D-
2100-12 (as may be amended) (the "Ordinance "), adopted or to be adopted by the Common
Council of the City ( "Common Council ") prior to the issuance of the Bonds, and pay all costs or
expenses incurred in connection therewith (clause (1)(A), collectively, the "Refunding Project "),
and (B) finance or reimburse the cost of the construction, renovation, improvement and /or
equipping of the projects identified in the Ordinance (clause (1)(B), collectively, the "City
Center Completion Projects "); (2) funding a debt service reserve fund or paying the premiums
for one or more municipal bond insurance policies and /or one or more debt service reserve fund
credit facilities, if any; (3) paying capitalized interest on the Bonds, if any; and (4) paying all
costs of issuance of the Bonds (clauses (1) through and including (4), collectively, the "Project ");
and
WHEREAS, the form of proposed Lease has been presented to the Commission at this
meeting; and
WHEREAS, after publishing notice of a public hearing in accordance with Indiana law
and Section 147(0 of the Internal Revenue Code of 1986, as amended, the Commission held a
public hearing on September 19, 2012, at 6:30 p.m. (local time), in the City Hall Council
Chambers, located at One Civic Square, Carmel, Indiana, regarding the Lease and the Bonds at
which the Commission provided all interested parties the opportunity to be heard at such hearing;
and
WHEREAS, pursuant to the terms of the Lease, the Commission intends to pay lease
rental payments to the Authority (the "Rental Payments ") at a maximum annual rate of
Seventeen Million Five Hundred Thousand Dollars ($17,500,000), which Rental Payments shall
be payable in semi- annual installments, for a term no longer than twenty -five (25) years
beginning on the date on which the Commission begins to make Rental Payments under the
Lease, and ending on the day prior to a date not later than twenty -five (25) years thereafter; and
WHEREAS, the Commission desires to execute the Lease and authorize the publication,
in accordance with Indiana Code 36 -7 -14 -25.2, of a Notice of Execution and Approval of Lease.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF CARMEL
REDEVELOPMENT COMMISSION AS FOLLOWS:
1. The Commission hereby finds and determines that the terms of the Lease are
based upon the value of the Leased Premises, that the Rental Payments to be paid by the
Commission, pursuant to the terms of the Lease, at a maximum annual rate of Seventeen Million
Five Hundred Thousand Dollars (S 17,500,000), which Rental Payments shall be payable in semi-
annual installments, for a term no longer than twenty -five (25) years beginning on the date on
which the Commission begins to make lease rental payments under the Lease and ending on the
day prior to a date not later than twenty -five (25) years thereafter, are fair and reasonable, and
that the service to be provided throughout the term of the Lcase will serve the public purpose of
the City and is in the best interests of its residents.
2. The Commission reasonably expects to pay the Rental Payments during the term
of the Lease from tax increment revenues or other legally available revenues of the Commission,
and the payment of the Rental Payments will be secured by a back -up pledge of the revenues
derived by the Commission from the levy of a special benefits tax pursuant to Indiana Code 36-
7-14-27.
3. The President or Vice President and the Secretary of this Commission are hereby
authorized and directed, on behalf of the City, and subject to obtaining approval from the
Common Council, to execute and deliver the Lease in substantially the form presented at this
meeting with such changes in form or substance as the President or Vice President of this
Commission shall approve, such approval to be conclusively evidenced by the execution thereof;
provided, however, the annual Rental Payments and term of the Lease shall not exceed the
parameters set forth in paragraph 1 hereof.
4. The Secretary of the Commission is hereby directed to transmit to the Common
Council a copy of this Resolution and to request from the Common Council an ordinance
approving the Lease, prior to the execution thereof.
5. The Commission hereby authorizes the publication, in accordance with Indiana
Code 36 -7 -14 -25.2, of the Notice of Execution and Approval of Lease.
6. The Commission hereby declares its official intent to facilitate the issuance of the
Bonds for the purpose of financing the Project. The Commission hereby declares its intent,
pursuant to Treas. Reg. §1.150-2 and Indiana Code 5- 1- 14 -6(c), that all or a portion of the costs
incurred by or on behalf of the Authority, the Commission or the City in financing the Project, be
reimbursed from the proceeds of the Bonds.
7. The President, Vice President and Secretary of this Commission, and each of
them, is hereby authorized and directed to take any and all such further actions and to execute all
2
such instruments, documents or certificates as may be necessary, desirable or appropriate to
cant' out the Project and the transactions contemplated by this Resolution, in such forms as the
President, Vice President or Secretary executing the same shall deem proper, such desirability to
be conclusively evidenced by the execution thereof, and any and all actions previously taken by
any member of the Commission or representatives of the Commission in connection with the
foregoing resolutions, including, but not limited to, publication of the notice of the public
hearing held in connection with such resolutions, be, and hereby are, ratified and approved.
8. This Resolution shall be in full force and effect after adoption by the Commission.
ADOPTED this 19th day of September, 2012.
INDSOI li1B 1350187v3
CITY OF CARMEL REDEVELOPMENT
COMMI ION
President
Vice President
3