HomeMy WebLinkAboutBPW-03-20-13-03 - Acknowledging receipt of contract RESOLUTION NO. BPW-03-20-13-03
RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY 1 eg4iop
ACKNOWLEDGING RECEIPT OF CONTRACT 4 4
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WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Cannel, Indiana ("City"), is authorized to
enter into contracts; and
WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor shall sign all contracts of the City; and
WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C.
Brainard,has signed the City contract attached hereto as Exhibit A (the"Contract"); and
WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and
Safety for it to be publicly acknowledged, filed in the Clerk-Treasurer's Office, and made available to the public for
review.
NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as
follows:
1. The foregoing Recitals are incorporated herein by this reference.
2. The receipt of the Contract is hereby acknowledged.
3. The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to
the public for review.
SO RESOLVED this a0 day of , 2013.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY: atearte_c__,"
led_t_fre2 Jame ard, Presiding Officer
Date. 3 -
I Sir
ary A. Burke, Member
Date: — r •
II./
Lori S. Watson, M '.er •
Date: v3/moo/r3
ATTEST: .
Diana ordray, IMCA, Clerk-Tiasurer
Date:
LIE Bass1My Documents\DPW-Resolutions 2013W Inw4edge PARKING MGT Agmt-Carmel Lofts Sophia Sq, BPW 03-06-13-03.doexy13,2013256 PM
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PARKING MANAGEMENT AGREEMENT
This Parking Management Agreement (the "Agreement") is hereby entered into as of the
31st day of May, 2011, by and between Carmel Lofts LLC, an Indiana limited liability company ("CL"), and
The City of Carmel, Indiana, a municipal corporation ("CITY"), as assignee of The City of Carmel
Redevelopment Commission ("CRC"), and Keystone Realty Group LLC ("Parking Manager").
Section 1. Definitions.
(a) Access Declaration shall mean that certain Access and Use Declaration executed by
CL, as Declarant, dated March 19, 2009, and recorded in the Recorder's Office as Instrument
Number 2009015884.
(b) Affiliate shall mean: (i) any person or entity holding any direct or 'indirect equity,
ownership, or beneficial interest in CL; (ii) any entity controlling, controlled by, or under common
control with CL; or (Hi) any person or entity that has any direct or indirect equity, ownership, or
beneficial interest in the Building.
(c) Allocable Costs shall mean expenses that properly are allocable to the Garage
Declarant under the Stacking Declaration.
(d) Annual Maintenance Plan shall mean the maintenance, repair, and replacement plan
with respect to the Facilities for a particular calendar year, which plan shall: (i) contemplate
maintenance, repair, and replacements sufficient to satisfy the obligations under Section 4; (ii)
include, without limitation: (A) a janitorial program; (B) a regularly scheduled program of
preventive maintenance and repair of the Garage Equipment and the Public Restrooms that
complies with the requirements of the applicable Warranties; (C) annual power washing of the
Parking Garage; and (D) a regularly scheduled program of adequate sealing, patching, re-
topping, and striping; and (iii) reflect the maintenance, repair, and replacement of the Facilities in
conformity with the Maintenance Standard.
(e) Bankruptcy Default shall mean: (i) the adjudication of Parking Manager as bankrupt or
insolvent; (ii) the making by Parking Manager of a general assignment for the benefit of creditors;
(Hi) the appointment of a trustee or receiver for the property of Parking Manager, if such
• appointment is not vacated or set aside within 60 days from the date of such appointment; (iv) the
filing of an involuntary petition in bankruptcy or for reorganization or arrangement against Parking
Manager, if such involuntary petition is not vacated within 60 days after the filing thereof; (v) the
filing by Parking Manager of a voluntary petition in bankruptcy or for reorganization or
arrangement; (vi) the filing by Parking Manager of an answer in a legal proceeding admitting
bankruptcy or insolvency; or (vii) Parking Manager's seeking or agreeing in a legal proceeding to
reorganization, arrangement, or appointment of a trustee or receiver.
(f) Building shall mean the mixed use building located on the Site.
(g) Casualty Insurance shall mean casualty insurance with respect to the Facilities in
an amount equal to the replacement cost thereof, the policies of which shall meet or exceed
the requirements of Exhibit C; attached hereto; provided that, if, pursuant to this Agreement,
CL and CITY agree to requirements in addition to, or different from, those set forth on
Exhibit C, then, to the extent that such agreed requirements conflict with the requirements of
Exhibit C, such agreed requirements shall control.
(h) Claims shall mean claims, liabilities, damages, losses, costs, and expenses (including,
without limitation, reasonable attorneys' fees).
(i) Commencement Date shall mean May 31, 2011.
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(j) Control Equipment shall mean any entrance and exit gates, ticket dispensers and/or
readers, and other equipment used in the control of entrance into, exit from, and /or parking in,
the Parking Garage.
(k) 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: (i) commences to remedy the failure within the 30-day period; and (ii)
diligently pursues such remedy to completion.
(I) Employee Standards shall mean standards for employment that: (i) are: (A) comparable
in scope and content to standards and/or policies for employment that are maintained by CITY;
and (B) not invidiously discriminatory, either by their terms or in the manner in which they are
applied; and (ii) comply with the Laws.
(m) Ending Date shall mean the date on which this Agreement is terminated in accordance
with its terms.
(n) Event of Default shall mean: (i) a Bankruptcy Default; or (ii) any "Event of Default", as
defined in Subsection 9(a).
(o) Facilities shall mean the Parking Garage and the Public Restrooms, collectively.
(p) Garage Declarant shall mean the "Garage Owner" and/or the "Garage Declarant" under
the Stacking Declaration and/or Access Declaration.
(q) Garage Equipment shall mean: (i) the HVAC Equipment; (ii) the Control Equipment; and
(iii) the mechanical, electrical, plumbing, drainage, security and other equipment serving the
Parking Garage.
(r) HVAC Equipment shall mean the heating, and air conditioning systems, facilities,
and equipment serving the Parking Garage.
(s) Intended Use shall mean the use of: (i) the Parking Garage as a first-class parking
garage; and (ii) the Public Restrooms as a public restroom; in each case, that serve the Building
and the general public.
(t) ISBA shall mean Indiana State Board of Accounts.
(u) Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable
governmental rules, regulations, guidelines, orders, and/or decrees.
(v) Liability Insurance shall mean public liability insurance, with limits of liability initially not
less than those set forth on Exhibit C, insuring against liability for property damage or loss,
personal injury, and loss of life occurring in or on, or in connection with the use or operation of,
the Facilities, the policies of which shall: (i) meet the requirements of Exhibit C; and (ii) name CL,
CITY, and Parking Manager as insureds (or as additional insureds, as applicable); provided that,
if, pursuant to this Agreement, CITY and CL agree to: (i) increased coverages; and/or (ii)
requirements in addition to, or different from, those set forth on Exhibit C; then, to the extent that
such agreed coverage increases and/or requirements conflict with the requirements of Exhibit C,
such agreed coverage increases and/or requirements shall control.
(w) Maintenance Standard shall mean the standard determining the condition in which the
Facilities shall be kept and maintained, which standard: (i) shall be at least as high as the
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standards for maintenance by CITY of public parking garages and surface parking lots or public
restrooms, as the case may be; and (ii) at the election of CL or CITY, shall be such higher
standards as would be applied by CL and/or the Affiliates for maintenance of parking garages
serving a first-class mixed-use building.
(x) Operations Standard shall mean a standard requiring the management and operation of
the Facilities: (i) in a first-class manner, and otherwise consistent with the management and
operation of similar parking garages or public restrooms, as the case may be, in the area; (ii) in
the interest, and for the benefit, of the people of CITY; and (iii) in such a manner that: (A)
promotes the interests and welfare of, and fosters favorable public relations for, the Building; and
(B) promotes good relations in dealings with the public; provided that nothing in subsections (ii)
and (iii) above shall materially and adversely affect (A) the rights and benefits afforded CL
hereunder; or(B) the ability of tenants and customers of the Building to park in the Garage.
(y) Parking Garage shall mean: (i) two levels of underground parking facilities containing
approximately 400 parking spaces; (ii) garage entrances and exits, ramps, and elevator lobbies;
and (iii) related facilities; constructed on the Site, all as generally depicted and/or described on
Exhibit B.
(z) Parking Proposal shall mean a proposal submitted by CITY acceptable to CL requesting
that: (i) a fee be charged to park in the Public Parking Spaces regardless of whether such fee
applies on a daily basis or only in connection with special events occurring in the vicinity of the
Site; (ii) a fee no longer be charged to park in the Public Parking Spaces; (iii) a limit be placed on
the number of hours per day a customer may park in a Public Parking Space; or (iv) the removal
of a limit on the number of hours per day a customer may park in a Public Parking Space;
provided that in all events no such fees or limits shall be imposed on Public Parking Spaces used
by Building tenants, customers or other members of the public visiting the retail shops and
restaurants located within the Building or on any Reserved Parking Spaces. Any proposal for
collecting fees or limiting hours of parking shall include a program for collecting any parking fees
and/or enforcing any time limits (as applicable). CL shall be free to impose, remove, or amend
restrictions on, time limits or any fees chargeable to users of Reserved Parking Spaces without
the requirement of a Parking Proposal or consent from CITY or Parking Manager.
(aa) Parking Spaces shall mean spaces in the Parking Garage for parking motor vehicles.
(bb) Project Agreement shall mean that certain Project Agreement executed by and between
CL and CRC dated January 5, 2009, as amended by that certain First Amendment to Project
Agreement dated March 19, 2009.
(cc) Public Parking Spaces shall mean all Parking Spaces other than Reserved Parking
Spaces.
(dd) Public Restrooms shall mean that certain structure separate from, but attached to, the
Building and located on the Site that houses restrooms open for use by members of the public.
(ee) Recorder's Office shall mean the Office of the Hamilton County, Indiana Recorder.
(ff) Records shall mean books and records with respect to the maintenance, repair,
replacement, management, and operation of the Parking Garage, including, without limitation: (i)
copies of all contracts and agreements with respect thereto; and (ii) customary supporting records
and receipts.
(gg) Reimbursement Amount shall mean the sum of: (i) all reasonable costs and expenses
associated with the maintenance and operation of the Facilities (including all costs and expenses
for the Annual Maintenance Plan); (ii) all Allocable Costs that are allocable to the Garage
Declarant under the Stacking Declaration; (iii) all reasonable, actual, out-of-pocket costs and
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expenses to implement any Parking Proposals (including, without limitation, any Garage
Equipment reasonably required to implement such Parking Proposals and all sales taxes, and
any other applicable taxes and expenses (including labor costs) reasonably necessary to
implement and conduct such Parking Proposals; (iv) all other reasonable, actual, out-of-pocket
costs and expenses related to, or associated with, the Services; in each case, to the extent not
paid directly by CITY or CRC; (v) 50% of the Reserved Parking Spaces Administration Costs
(provided that for avoidance of doubt, the parties agree that Reserved Parking Spaces
Administration Costs shall not be included in any other category of cost set forth above); (vi) all
costs and expenses for utility services unless billed and paid directly by CITY; (vii) an
administrative fee equal to the greater of (1) five percent (5%) of the operating costs for the
Garage (exclusive of taxes or insurance costs) or (2) $24,000 per calendar year; and (viii) all
costs and expenses for real estate and personal property taxes for the Parking Garage and
Garage Equipment and for the insurance required by Section 8.
(hh) Reserved Parking Space shall mean a Parking Space that is reserved or set aside at
any time as "Building Owner Spaces" in accordance with Section 4 of the Access Declaration.
(ii) Reserved Parking Spaces Administration Costs shall mean all reasonable, actual,
out-of-pocket costs and expenses incurred in connection with administering the Reserved Parking
Spaces, including, without limitation, costs and expenses to: (i) obtain and install signage
identifying the Reserved Parking Spaces; (ii) remove unauthorized users from any Reserved
Parking Spaces;.and/or(iii) enforce the Rules.
Retained Parking Spaces shall mean Parking Spaces to which CL either retains or
obtains fee ownership, all of which Parking Spaces shall be deemed to be Reserved Parking
Spaces for the benefit of CL.
(kk) Rules shall mean rules and regulations governing use of (including access to and from)
the Parking Garage, which rules and regulations shall: (i) not be discriminatory, either by their
terms or in the manner in which they are applied; (ii) be consistent with the terms and conditions
of this Agreement; and (iii) be established (and modified or amended) by CL, subject to CITY's
reasonable approval; provided that CITY'S failure to object in writing to any proposed Rules within
ten business days of CITY's receipt of written notice thereof shall be deemed approval of such
Rule by CITY.
(II) Services shall mean all services to be performed by Parking Manager pursuant to this
Agreement with respect to the Facilities.
(mm) Site shall mean that certain real estate described and/or depicted on Exhibit A. The Site
is the"Project Site" under the Project Agreement.
(nn) Space Interest shall mean an interest in a specific Parking Space, whether by fee
ownership, easement, lease, sublease, license, or sublicense. The Space Interest is the "Space
Interest" under the Access Declaration.
(oo) Stacking Declaration shall mean that certain Declaration of Stacking Covenants and
Easements (Garage) executed by CL, as Declarant, dated March 19, 2009, and recorded in the
Recorder's Office as Instrument No. 2009015883.
(pp) Term shall have the meaning ascribed to it in Section 2.
(qq) Warranties shall mean all warranties obtained by CL from manufacturers, suppliers, and
contractors with respect to: (i) the construction of the Parking Garage; and/or (ii) the acquisition
and/or installation of the Garage Equipment.
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Section 2. Term. The "Term" of this Agreement shall: (a) commence on the Commencement Date;
and (b) end on December 31, 2013; provided that the Term automatically shall be renewed for successive
periods of one calendar year, unless a party shall delivery written notice of termination to the other parties
hereto at least 30 days prior to the end of the Term, or unless otherwise terminated in accordance with
the terms and conditions of this Agreement.
Section 3. Reimbursements. CITY shall pay to CL the Reimbursement Amount. On a monthly •
basis (or such other periodic basis that all parties hereto agree is reasonable): (a) CL shall submit to CITY
invoices for the Reimbursement Amount, together with documentation reasonably evidencing the same;
and (b) CITY shall pay the Reimbursement Amount in accordance with Indiana law and standard
payment procedures established by CITY but in no event more than 90 days after CITY's receipt of an
invoice therefor(except for any portion thereof reasonably disputed in good faith).
Section 4. General Obligations and Requirements.
(a) General. CL shall cause Parking Manager to: (i) maintain, repair, and replace
the Facilities in accordance with the terms and conditions of this Agreement (including,
without limitation, that Parking Manager shall conform to the Maintenance Standard); and
(ii) manage and operate the Facilities for the Intended Use and in accordance with the
Operations Standards. In connection with the discharge of the foregoing obligations,
Parking Manager shall: (i) hire, discharge and supervise all employees and contractors
that CL deems to be necessary or appropriate; (ii) adopt and enforce the Rules; and (iii)
establish (and enforce) hours of operation for the Facilities, which hours shall be subject
to the reasonable approval of CL and CITY; provided that in all events access to the
Parking Garage shall be available to tenants of the Building at all times and such access
shall not in and of itself be deemed to establish any parking spaces as Reserved Parking
Spaces.
•(b) Nondiscrimination. CL represents and warrants that it, Parking Manager, and all
of their respective officers, employees, agents, contractors and subcontractors shall
comply with all applicable Laws prohibiting discrimination against any employee,
applicant for employment or other person in the provision of the Services with respect to
their hire, tenure, terms, conditions and privileges of employment and any other matter
related to their employment or subcontracting, because of race, religion, color, sex,
handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era
veteran status.
(c) Utilities. Subject to the Stacking Declaration and CITY's reimbursement
obligations under Section 3, Parking Manager shall pay all utility charges, costs, and
expenses attributable to the Facilities that CITY does not pay directly to the applicable
utility company; provided that all utility services shall be placed in the name of CITY and
billed directly to CITY. Upon request by CITY, CL shall work with CITY in good faith to
develop and implement an energy savings plan with respect to the use and operation of
the Facilities.
(d) Compliance. In discharging its obligations under this Agreement, CL and Parking
Manager shall comply with all: (i) Laws; (ii) requirements of all policies of insurance
required by this Agreement, the Access Declaration, and/or the Stacking Declaration to
be maintained (or actually maintained) by CL; and (iii) applicable requirements of the
ISBA identified to CL and Parking Manager in writing by CITY.
(e) Employees. CL shall cause Parking Manager to develop and implement the
Employee Standards. All employees and contractors hired by Parking Manager: (i) are
(and shall be considered for all purposes to be) the employees and contractors of Parking
Manager; and (ii) are not (and shall not be considered for any purpose to be) the
employees or contractors of CITY. Accordingly, CITY shall have no obligations or
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liabilities with respect to such employees and contractors, who shall look exclusively to
Parking Manager to discharge all obligations and duties as their employer or principal.
CITY may require: (i) background checks for any or all employees or contractors hired by
CL; (ii) random or periodic drug testing for all such employees and contractors; and (iii)
CL to terminate any employee or contractor for cause (including, without limitation, for:
(A) failing a drug test; or (B) a material violation of the Employee Standards); and any
contracts for employment of such employees or contractors shall include consents to the
implementation of such requirements
(f) Annual Maintenance Plan. At CITY's request, CL shall prepare and submit, or
cause Parking Manager to prepare and submit, to CITY on an annual basis an Annual
Maintenance Plan.
Section 5. Maintenance Obligations. At all times during the Term, CL shall cause Parking
Manager to keep and maintain (and shall provide all maintenance, repairs, and replacements necessary
to keep and maintain): (a) the Facilities in a structurally sound condition that provides support for the
Building; and (b) the Facilities in: (i) good and safe order, condition, and repair; (ii) a clean and sightly
condition; and (Hi) compliance with all Laws. In connection with satisfying the obligations set forth in this
Section, Parking Manager shall: (a) conform to the Maintenance Standard; and (b) satisfy the
maintenance, repair, and replacement obligations of the Garage Declarant under the Access Declaration
and/or the Stacking Declaration, to the extent that such obligations apply to any of the Facilities.
Section 6. Records and Accounting.
(a) Records. CL shall cause Parking Manager to: (i) prepare and keep a permanent,
accurate, full, and complete set of the Records; and (H) keep the Records for at least five
years after the expiration of the calendar year to which they pertain; provided that, if the
ISBA requires that the Records be kept for a period in excess of five years, then Parking
Manager shall keep the Records for such longer period as is required by the ISBA;
provided that CITY has provided CL and Parking Manager written notice of such longer
period, at which time Parking Manager shall commence storing the Records for such
extended period. All the Records shall be open to inspection by CITY and the ISBA at all
reasonable times until the expiration of such five-year period (or such longer period as
may be required by the ISBA as set forth above). If there is any dispute with respect to
the information disclosed by the Records, then Parking Manager shall keep the Records
with respect to the subject of such dispute until the dispute is settled. The obligation of
Parking Manager to keep Records shall survive the Ending Date.
(b) Audit. CITY at any time, and from time to time, during the term may request an
audit of the Records by a qualified, independent certified public accountant selected by
CITY and reasonably acceptable to CL; provided that: (i) such audit shall be conducted
during regular business hours at the office where CL or Parking Manager maintains the
Records; (ii) CITY shall pay all costs of the audit, unless the audit discloses that CL or
Parking Manager has, in any Record upon which payment owed to or by CITY is
calculated: (A) understated, by 2'%% or more, revenue obtained in connection with the
Facilities; (B) overstated, by 5% or more, any line item of less than $20,000.00; or (C)
overstated, by 2'%% or more, any line item of $20,000.00 or more; in which case CL
and/or Parking Manager shall pay all costs of the audit; and (iii) the results of the audit
shall be binding upon Parking Manager, CL, and CITY. The obligations of Parking
Manager, CL, and CITY under this Subsection shall survive the Ending Date. If an audit
is required by the ISBA, then, notwithstanding anything to the contrary set forth herein: (i)
such audit shall be conducted in accordance with the requirements of the ISBA, including
that the party performing such audit shall be determined by the ISBA; and (H) CL and
Parking Manager shall participate cooperatively in such audit, including that CL and
Parking Manager promptly shall provide to the ISBA such information required by this
Agreement to be in its possession or control as the ISBA may require; and CITY shall pay
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the costs of the ISBA audit; provided that in no event shall CITY be responsible for CL's
or Parking Manager's costs and expenses of performing their respective obligations
under this Subsection.
Section 7. Use of Spaces. The obligations with respect to the Parking Spaces shall be as set forth
in this Section.
(a) Reserved Parking Spaces. CL shall: CO identify any Reserved Parking Spaces;
and: (ii) cause the Parking Manager to: (A) remove unauthorized users therefrom; and
(B) enforce the Rules. As between CITY and CL, CL shall be responsible for payment of
50% of the Reserved Parking Spaces Administration Costs.
(b) Public Parking Spaces. Parking Manager shall make the Public Parking Spaces
available to members of the public; provided that: (i) the Public Parking Spaces shall: (A)
be made available on a short-term basis; and (B) be made available on a first-come, first-
served basis; and (ii) there shall be no charge to park in the Public Parking Spaces,
except pursuant to a Parking Proposal. At the request of CITY, and at CITY's cost,
Parking Manager shall install signage informing members of the public parking in the
Public Parking Spaces: (i) of the Rules; (ii) of the terms and conditions of this Subsection;
and (iii) that they may park in a particular Public Parking Space. Parking Manager shall
be responsible for: CO ensuring that the Public Parking Spaces are used in accordance
with the terms and conditions of this Subsection; and (ii) enforcing the Rules. Parking
. Manager may institute rules establishing time limits for Public Parking Spaces; provided
CITY shall be entitled to approve such limits in advance. Any costs and expenses to
implement such hourly limits shall be reimbursed by CITY in the manner set forth in
Section 3. Any Parking Proposal shall be subject to CL's approval, which approval shall
not be withheld unreasonably. If a Parking Proposal is approved by CL, then CITY shall
prepare a plan to implement the Parking Proposal, which plan shall be subject to the
reasonable approval of CL. An approved Parking Proposal, and the approved plan
implementing such approved Parking Proposal, shall remain in effect until a subsequent
Parking Proposal, together with a corresponding implementation plan, is approved. It is
expressly agreed and acknowledged that nothing set forth in this Subsection or
elsewhere in the Agreement shall grant CITY any authority or approval over fees or
expenses charged by CL for the Reserved Parking Spaces or any other restrictions CL
may implement, modify, or withdraw with respect thereto; provided that such restrictions
are consistent with the Access Declaration and the Stacking Declaration.
(c) Access. At all times when parking is permitted in the Parking Garage, Parking
Manager shall cause there to: (i) remain open entrances into, and exits from, the Parking
Garage that provide reasonably convenient access to the Parking Spaces in which
parking is permitted at such time; and (ii) be adequate signage clearly identifying, and
directing vehicles to, such open entrances and exits; provided that in all events access to
the Parking Garage shall be available to tenants of the Building at all times and such
access shall not in and of itself be deemed to establish any parking spaces as Reserved
Parking Spaces.
Section 8. Insurance.
(a) Policies. Parking Manager shall: (i) comply with the provisions of the applicable
worker's compensation laws; and (ii) insure its liability thereunder. CL and/or Parking
Manager shall further cause: (i) the Casualty Insurance and the Liability Insurance to be
carried on the Facilities; and (ii) such other insurance as Parking Manager or CL
reasonably deem prudent to be carried on the Facilities; the cost of which shall be
reimbursed in accordance with Section 3. Any deductible with respect to the Casualty
Insurance or the Liability Insurance shall be treated as an expense reimbursable under
Section 3.
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(b) Indemnification.
(I) CL. CL shall indemnify and hold harmless CITY from and
against any and all Claims arising from or connected with: (A) CL's
maintenance, repair, replacement, operation, or use of the Facilities
(including, without limitation, Claims related to injury to, or death of,
persons or loss of, or damage to, property); (B) the negligence or willful
misconduct of CL or any party acting by, under, through, or on behalf of
CL; or (C) the breach by CL of any term or condition of this Agreement.
The indemnification obligations of CL under this Subsection shall not
extend to Claims to the extent they arise from, or are connected with, the
gross negligence or willful misconduct of CITY.
(ii) CITY. CITY shall indemnify and hold harmless CL and Parking
Manager from and against any and all Claims arising from or connected
with: (A) CITY's maintenance, repair, replacement, operation, or use of
the Facilities (including, without limitation, Claims related to injury to, or
death of, persons or loss of, or damage to, property); (B) the negligence
or willful misconduct of CITY or any party acting by, under, through, or on
behalf of CITY; or (C) the breach by CITY of any term or condition of this
Agreement. The indemnification obligations of CITY under this
Subsection shall not extend to Claims to the extent they arise from, or
are connected with, the gross negligence or willful misconduct of CL or
Parking Manager.
(iii) Security. CITY expressly acknowledges that the Services do not
include the rendition of service, supervision, or furnishing of personnel in
connection with the personal safety and security of persons or property
within and about the Facilities. Neither CL nor Parking Manager has
knowledge or expertise as a guard or security service, and do employ
personnel for that purpose, and neither CL's nor Parking Manager's
employees undertake the obligation to guard or protect customers
against the intentional acts of third parties. CL and/or Parking Manager
may determine, at their or its reasonable discretion, to install
precautionary warnings, security devices, or security services in and
about the Facilities and, if approved by CITY in its sole discretion, such
services and/or equipment shall be deemed reimbursable expenses for
purposes of Section 3. CITY agrees to indemnify and hold harmless CL
and Parking Manager from and against any Claims asserted by any
member of the public using the Parking Garage (other than the holder of
a Reserved Parking Space) arising from CL's or Parking Manager's
alleged failure to warn, guard, or protect persons in or about the Facilities
from and against intentional threats, harm, or injury, except for such
threats, harm, or injury intentionally committed by CL, Parking Manager,
or their respective officers, employees, agents, or contractors.
Notwithstanding the foregoing, CL and Parking Manager shall take
reasonable measures to advise CITY of all security concerns and
incidents in the Facilities of which CL or Parking Manager has actual
knowledge so that CITY may make informed decisions with respect to
security.
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Section 9. Default and Remedies.
(a) Events of Default. It shall be an "Event of Default" if any party fails to perform or
observe any term or condition of this Agreement to be performed or observed by it: (i)
with respect to the obligation to pay money, if such failure is not cured within ten days
after receipt of written notice that such payment is due; and (ii) with respect to any other
obligation, if such failure is not cured within the Cure Period.
(b) Remedies. Whenever an Event of Default occurs, the non-defaulting party may
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take whatever actions at law or in equity are necessary or appropriate to: (i) collect any
payments and other sums due under this Agreement; (H) protect the rights granted to the
•
non-defaulting party under this Agreement; (iii) enforce the performance or observance,
or enjoin any breach, by the defaulting party of any term or condition of this Agreement
(including, without limitation, the right to: (A) specifically enforce any such term or
condition; or (B) seek an injunction with respect to any such breach; or (iv) cure, for the
account of the defaulting party, any failure of the defaulting party to perform or observe a
material term or condition of this Agreement to be performed or observed by it. If the
non-defaulting party incurs any costs or expenses in connection with exercising its rights
and remedies under, or enforcing, this Agreement, then the defaulting party shall
reimburse the non-defaulting party for all such costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs), together with interest at the rate of
12% per annum. Notwithstanding the foregoing, this Agreement may not be terminated
except by mutual agreement as provided in Subsection 9(c) or as provided in Subsection
9(d).
(c) Termination. If this Agreement is mutually terminated for any reason, then CL
and CITY shall execute an agreement in substantially the same form as this Agreement
(or such other form as shall be acceptable to the parties hereto); provided that any
successor Parking Manager shall be: (i) Keystone Realty Group, LLC; (ii) an Affiliate; or
(iii) such other entity as selected by CL, and reasonably approved by CITY, with
experience in managing parking garages in the Indianapolis metropolitan area.
(d) Appropriations. Notwithstanding any other provision contained in the Agreement,
CITY immediately may terminate this Agreement, without penalty, at such time as
sufficient monies are not appropriated by CITY to allow it to fully meet its financial
obligations hereunder; provided that in such event CITY shall assign to CRC, and cause
CRC to assume, this Agreement and all of the obligations hereunder, or cause CRC to
execute a replacement agreement substantially similar in all material respects with CL
and Parking Manager.
(e) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to,
a non-defaulting party is intended to be exclusive of any other available right or remedy,
unless otherwise expressly stated; instead, each and every such right or remedy shall be:
Cr) cumulative; and (ii) in addition to every other right or remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or omission by a
non-defaulting party to exercise any right or remedy upon any Event of Default shall
impair any such right or remedy, or be construed to be a waiver thereof, and any such
right or remedy may be exercised from time to time, and as often as may be deemed to
be expedient. To entitle a non-defaulting party to exercise any right or remedy conferred
upon, or reserved to, the non-defaulting party, it shall not be necessary for the non-
defaulting party to give notice to the defaulting party, other than such notice as may be
required by this Section or by the Laws.
Section 10. Mechanic's Liens. No Party hereto shall suffer or cause the filing of any mechanic's lien
against any part of the Facilities. If any such mechanic's lien is filed for work claimed to have been done
for, or materials claimed to have been furnished to: (a) Parking Manager, CL, or CITY; or (b) any party
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acting by, under, through, or on behalf of Parking Manager, CL, or CITY; then Parking Manager, CL, or
CITY, respectively, shall: (a) cause such mechanic's lien to be discharged of record within 60 days after
notice of the filing by bonding or as provided or required by law; or (b) provide evidence that the lien is
being contested by proceedings adequate to prevent foreclosure of the lien, together with a satisfactory
indemnity On an amount equal to at least 150% of the claimed lien), to the other parties within 30 days
after notice of the filing thereof; and in each instance indemnify and hold harmless the other parties from
and against any and all Claims arising from or connected with any such mechanic's lien. All liens
suffered or caused by CL or CITY shall attach only to the interest of CL or CITY, respectively. Nothing in
this Agreement shall be deemed or construed: (a) to constitute consent to, or request of, any party for the
performance of any work for, or the furnishing of any materials to, CL or CITY; or (b) as giving Parking
Manager, CL, or CITY the right or authority to contract for, authorize, or permit the performance of any
work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to the interest
of the other party.
Section 11. Assignment. CITY, CL, and Parking Manager shall not assign this Agreement without
the prior written approval of the other parties; provided that: (a) without the prior written approval of CL,
CITY may assign this Agreement to an agency or instrumentality of CITY; (b) without the prior written
approval of CITY, CL may assign this Agreement to a successor owner of the Building; and (c) Parking
Manager may assign this Agreement only to: (i) Keystone Realty Group, LLC; (ii) an Affiliate; or (iii) such
other entity as selected by CL, and reasonably approved by CITY, with experience in managing parking
garages in the Indianapolis metropolitan area. Notwithstanding any assignment permitted under this
Section, CITY, CL, or Parking Manager, as the case may, shall remain liable to perform all of the terms
and conditions to be performed by it under this Agreement, and the approval by the other party of any
assignment shall not release CITY, CL, or Parking Manager, as the case may be, from such performance;
provided that, in the case of any permitted assignment hereunder to an assignee that: (a) has full power
and authority to accept an assignment of this Agreement and carry out the obligations of the assignor
hereunder; and (b) expressly assumes all such obligations in writing; then the assignor shall be released
from liability under this Agreement for all obligations to be performed after the date of such assignment
and assumption. CITY represents to CL and Parking Manager that it is CITY's official position that all
contracts and agreements entered into by CRC are contracts or agreements of CITY, and, accordingly,
no assignments of contracts or agreements from CRC to CITY are necessary.
Section 12. Notice. Any notice required or permitted to be given by any party to this Agreement shall
be in writing, and shall be deemed to have been given when: (a) hand-delivered to the other party; (b)
sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service,
with confirmation of receipt, addressed as follows: to CL and/or Parking Manager at 47 S. Pennsylvania
Street, 10`h Floor, Indianapolis, Indiana 46204, Facsimile: 317-635-1100, Attn: Ersal Ozdemir; and to
CITY at City Hall. 1 Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Mayor, with a
copy to: City Attorney, City of Carmel, City Hall, 1 Civic Square, Carmel, Indiana 46032, Facsimile: 317-
571-2484. Any party may change its address for notice from time to time by delivering notice to the other
party as provided above.
Section 13. Force Majeure. Notwithstanding anything to the contrary set forth herein, if any party is
• delayed in, or prevented from, observing or performing any of its obligations under, or satisfying any term
or condition of, this Agreement as a result of: (a) an act or omission of one of the other parties; or (b) any
other cause that is not within the reasonable control of such party (including, without limitation, unusually
inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or
energy shortages or acts or omissions of public utility providers, but excluding a lack of financial
resources); then: (a) such observation, performance, or satisfaction shall be excused for the period of
days that such observation, performance, or satisfaction is delayed or prevented; and (b) the deadlines
for observation, performance, and satisfaction, as applicable, shall be extended for the same period.
Section 14. Authority. Each undersigned person executing this Agreement on behalf of CL, CITY,
and Parking Manager represents and certifies that: (a) he or she is empowered, and has been authorized
by all necessary action of CL, CITY, and Parking Manager, respectively, to execute and deliver this
Agreement; (b) he or she has full capacity, power, and authority to enter into and carry out this
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Agreement; (c) the execution, delivery, and performance of this Agreement have been authorized by CL,
CITY, and Parking Manager, respectively; and (d) this Agreement is the legal, valid, and binding
obligation of CL, CITY, and Parking Manager, respectively, enforceable in accordance with its terms and
conditions.
Section 15. E-Verify. All terms defined in I.0 . § 22-5-1.7 et seq. are adopted and incorporated into
this Section. Pursuant to I.C. § 22-5-1.7 et seq., Parking Manager shall enroll in and verify the work
eligibility status of all of its newly-hired employees using the E-Verify program, if it has not already done
so as of the date of this Agreement. Parking Manager is further required to execute an affidavit affirming
that: (a) it is enrolled and is participating in the E-Verify program; and (b) does not knowingly employ any
unauthorized aliens. In support of the affidavit, Parking Manager shall provide CITY with documentation
that it has enrolled and is participating in the E-Verify program. This Agreement shall not take effect until
said affidavit is signed by Parking Manager and delivered to CITY's authorized representative.
Should Parking Manager subcontract for the performance of any work under this Agreement, Parking
Manager shall require any subcontractor(s) to certify by affidavit that: (a) the subcontractor does not
knowingly employ or contract with any unauthorized aliens; and (b) has enrolled and is participating in the
E-Verify program. Parking Manager shall maintain a copy of such certification during of the term of any
subcontract. Parking Manager also shall deliver a copy of the certification to CITY within seven days of
the effective date of the subcontract.
If Parking Manager, or any subcontractor of Parking Manager, knowingly employs or contracts with any
unauthorized aliens, or retains an employee or contract with a person that Parking Manager or
subcontractor subsequently learns is an unauthorized alien, then Parking Manager shall terminate the
employment of or contract with the unauthorized alien within 30 days (the "Cure Period"). Should Parking
Manager or any subcontractor of Parking Manager fail to cure with the Cure Period, CITY shall have the
right to terminate this Agreement without consequence.
The E-Verify requirements of this Agreement shall not apply should the E-Verify program cease to exist.
Section 16. Nondiscrimination. Parking Manager represents and warrants that it and all of its
officers, employees, agents, contractors, and subcontractors shall comply with all laws of the United
States, the State of Indiana, and CITY prohibiting discrimination against any employee, applicant for
employment, or other person in the provision of any goods and services provided by this Agreement with
respect to his or her hire, tenure, terms, conditions and privileges of employment, and any other matter
related to his or her employment or subcontracting, because of race, religion, color, sex, handicap,
national origin, ancestry, age, disabled veteran status, and/or Vietnam-era veteran status.
Section 17. Iran Certification. Pursuant to I.C. § 5-22-16.5, CL and Parking Manager shall certify
that, in signing this document, they do not engage in investment activities within the Country of Iran.
Section 18. Miscellaneous. Subject to Paragraph 11, this Agreement shall inure to the benefit of,
and be binding upon, Parking Manager, CL, and CITY, and their respective successors and assigns. This
Agreement may be modified only by a written agreement signed by both parties. This Agreement shall
not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of
action in favor of, anyone other than the parties hereto. All indemnities set forth in this Agreement shall
survive the expiration of the Term or the earlier termination of this Agreement. The invalidity, illegality, or
unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the
validity, legality, or enforceability of the remaining terms and conditions hereof. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Indiana. The paragraph
headings shall not be considered in any way to affect the interpretation of this Agreement, and this
Agreement shall not be construed against the drafting party, it being acknowledged and agreed that each
party has reviewed and understands, and has had its counsel review, this Agreement. All Exhibits to this
Agreement are attached hereto and incorporated herein by reference. This Agreement may be executed
in separate counterparts, each of which when so executed shall be an original, but all of which together
shall constitute but one and the same instrument. The parties agree to execute and record a
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memorandum of this Agreement with the Recorder of Hamilton County, Indiana, with the costs of
recording to be paid by CL.
[Signature page to follow.]
•
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IN WITNESS WHEREOF, CL, CITY, and Parking Manager have executed this
Agreement as of the date set forth above.
CL:
CARMEL LOFTS LL
By: Keystone Gr. re, LC, -m/r
BY: sa . 4L
trsa!�d! ir, Member
CITY:
THE CIT OF CAR EL, INDIANA
By: . •
/ James C. Brainard, Mayor
PARKING MANAGER:
KEYSTONE REAL P -OUP LLC
By: Keystone Gro • LLC e er
By:� ± •
rsa i ¶emir, Member
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IN WITNESS WHEREOF, CL, CITY, and Parking Manager have executed this
Agreement as of the date set forth above.
CL:
CARMEL LOFTS LL
By: Keystone Grro • LLC, fair
By: ./ air A
/� Ersal •zdemir, Member
CITY: �/
THE CITY OF CARMEL, IN' A A, by and
through it :oard of •ublic Wor s an• Safety
By: 1 i 'Mc..
C • inard, Pr- 'ding officer
By: At1,„,,,,, • /A`
ary •nn Burk-, ember
/
'•
Attesting Lori Watson and Mary Ann Burke's t'•n, Member
ATTEST: signatures only. Did not witness Mayor signature.
BY: \i a L m i i .. ,_a-;
Diana L. Cordray, lAM , lerk-Treasurer
PARKING MANAGER:
KEYSTONE REALTY ROUP LLC
By: Keystone Group LLC, ;�= b
BY: . . .;
,�' rsal izd-mir, Member
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