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HomeMy WebLinkAboutEscrow Agreement Nash Building/CRC/Huntington/2,000,000 ESCROW AGREEMENT By and among CITY OF CARMEL REDEVELOPMENT COMMISSION BOARD OF PUBLIC WORKS OF THE CITY OF CARMEL, INDIANA, acting for and on behalf of the City of Carmel, Indiana And THE HUNTINGTON NATIONAL BANK • as Escrow Agent Dated as of December I, 2012 Relating to the Project Agreement to be entered into by and among the City of Carmel Redevelopment Commission, Carmel City Center, LLC, and CCC Nash, LLC 1NDSOI BIB 1372978v1 ESCROW AGREEMENT THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of December 1, 2012, by and among the CITY OF CARMEL REDEVELOPMENT COMMISSION (the "Commission"), as governing body of the CITY OF CARMEL REDEVELOPMENT DISTRICT, a special taxing district duly organized and validly existing under the laws of the State of Indiana (the "District"), the BOARD OF PUBLIC WORKS OF THE CITY OF CARMEL, INDIANA (the "Board"), and THE HUNTINGTON NATIONAL BANK, a national banking association organized under the laws of the United States of America with a corporate trust office in Indianapolis, Indiana, as escrow agent (the"Escrow Agent"). WITNESSETH: WHEREAS, the Commission, as governing body of the District, intends to enter into a Project Agreement, which upon execution shall be attached as Exhibit A hereto (the "Project • Agreement"), by and among the Commission, Carmel City Center, LLC, and CCC Nash, LLC, pursuant to which the Commission has agreed to contribute to the construction of the Garage (as • defined in the Project Agreement) in an area of the City known as City Center (collectively, the "City Center Completion Project"); and WHEREAS, the Common Council of the City of Carmel, Indiana (the "City"), adopted • Ordinance No. D-2100-19, as amended, on November 19, 2012 (the "Council Ordinance"), authorizing the issuance of the 2012 Bonds (as hereinafter defined) for the purpose of providing funds, in part, to finance the City Center Completion Project; and WHEREAS, concurrently with the execution of this Agreement, and in accordance with • Indiana Code 5-1-5, Indiana Code 36-7-14, and Indiana Code 36-7-14.5, each as amended, the City of Carmel Redevelopment Authority (the "Authority") has executed, issued and delivered, pursuant to a Trust Indenture, dated as of December I, 2012 (the "2012 Indenture"), between the Authority and The Huntington National Bank, as trustee (the "2012 Trustee"), dated as of December 1, 2012 (the "2012 Indenture"), its Lease Rental Revenue Multipurpose Bonds, Series 2012A, dated December 27, 2012, in the aggregate principal amount of $115,900,000 (the "2012A Bonds") and its Lease Rental Revenue Multipurpose Bonds, Series 2012B (Taxable), dated December 27, 2012, in the aggregate principal amount of $69,245,000 (the "2012B Bonds") (the 2012A Bonds and the 2012B Bonds, collectively, the "2012 Bonds"), in order to provide funds for the purpose of(a) financing the acquisition by the Authority from the City of certain real property (the "Leased Premises") and the use by the City of the proceeds of such sale to (i) refund, or cause to be refunded, certain outstanding obligations of the District, and pay all costs or expenses incurred in connection therewith, and (ii) finance or reimburse the cost of the construction, renovation, improvement and/or equipping of certain local public improvements in the City, including the City Center Completion Project; (b) paying the premium for a debt service reserve fund credit facility; and(c)paying all costs of issuance of the 2012 Bonds; and WHEREAS, the City, on behalf of the District, is depositing with the Escrow Agent a portion of the proceeds of the 2012B Bonds received by the City from the sale of the Leased INDS01 BJ8 1372978v1 1 Premises, in order to provide funds to pay for all or a portion of the City Center Completion Project in accordance with the Commission's obligations under the Project Agreement; • NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereinafter contained, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed by and among the parties hereto as follows: Section 1. Escrow Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund (the"Escrow Fund"), consisting of the following accounts: • • "City of Carmel, Indiana, Redevelopment District City Center Completion Project Escrow Account" (the"2012 Escrow Account"). The Escrow Fund is to be held separate and apart from all other funds of the Commission, the City and the Escrow Agent for the purpose of fulfilling the Commission's obligations under the Project Agreement. The Escrow Fund will contain funds of the City, acting on behalf of the District, deposited with the Escrow Agent pursuant to Section 2 hereof, in order to pay all or a portion of the City Center Completion Project in accordance with the Commission's obligations under the Project Agreement • Section 2. Funding of Escrow Fund. Concurrently with the execution of this Agreement, the City, acting on behalf of the District, shall deposit, or direct the 2012 Trustee to deposit, with the Escrow Agent for deposit into the 2012 Escrow Account, an amount equal to $2,000,000.00, • representing a portion of the net proceeds from the sale of the 2012B Bonds. The Escrow Agent hereby acknowledges receipt of cash in the aggregate amount of $2,000,000.00, and acknowledges that it has deposited all of such funds into the 2012 Escrow Account. During the term of this Agreement, the Escrow Agent shall hold all of such moneys uninvested in cash while on deposit in the 2012 Escrow Account;provided, however, the Commission may provide the Escrow Agent with written investment instructions for the purpose of authorizing the investment of moneys on deposit in the Escrow Fund. Moneys in the Escrow Fund may be invested as permitted under Indiana law. Section 3. Application of Escrow Fund. (a) The amounts held in the 2012 Escrow Account shall be applied to the payment of costs and expenses for the City Center Completion Project in accordance with'the procedures set forth in the Project Agreement. The Escrow Agent shall disburse moneys from the 2012 Escrow Account from time to time, upon the submission of a completed Disbursement Request Form (as defined in the Project Agreement), which complies with the terms and conditions set forth in the Project Agreement and which shall have been approved by the Commission and the Board. (b) The Commission covenants and agrees that the construction bidding and change orders related to the City Center Completion Project shall comply with the procedures set forth in Exhibit C to the Council Ordinance. Section 4. Checks; Records. The Escrow Agent is hereby authorized and directed to take all actions necessary to apply funds in the Escrow Fund for the payment of costs of the City Center Completion Project in accordance with the terms and conditions and in the manner INDS01 01B 1372978v1 2 • required by the Project Agreement. The Escrow Agent shall keep and maintain adequate records pertaining to the Escrow Fund, and the Escrow Agent shall furnish a statement with respect thereto to the Commission and the Board within thirty (30) days following the earlier of: (a) the depletion of all amounts in the Escrow Fund to pay for the costs of the City Center Completion Project, or (b) receipt of written notice from the Commission and the Board that the City Center Completion Project has been completed. • Section 5. Remaining Amount. Any amounts remaining in the 2012 Escrow Account after the earlier of: (i) the completion of the City Center Completion Project or (ii) the • termination of the Project Agreement; shall be transferred by the Escrow Agent in accordance with written instructions as shall be provided by the Commission subject to certification by the Commission that the Commission has received the approval of the Common Council of the City in accordance with the terms of the Council Ordinance concerning the transfer of such remaining amounts. The Commission shall provide the Escrow Agent with sufficient information to permit the Escrow Agent to make any such transfer. Section 6. Acknowledge of Receipt. The Escrow Agent acknowledges receipt of payment, or the provision of payment, of all fees and expenses of the Escrow Agent under this • Agreement. Section 7. Fees and Expenses. The Escrow Agent shall be entitled to payment and/or reimbursement by the Commission for reasonable fees for its services rendered hereunder and all • advances, counsel fees and other ordinary expenses reasonably and necessarily made or incurred • by the Escrow Agent in connection with such services, including, but not limited to, all of the mailing costs and other expenses related to any notices given hereunder. • Section 8. Waiver of Defenses. The Escrow Agent hereby waives any right of set-off, counterclaim, reduction or diminution of an obligation, or any defense of any kind or nature which the Escrow Agent has or may have against the Commission and the City insofar as such set-off, counterclaim, reduction, diminution or defense would have an adverse effect on the availability of funds sufficient to comply with the obligations of the parties contained herein. Section 9. Amendments. This Agreement may be amended, modified, supplemented or terminated only upon the written agreement of the Commission, the City and the Escrow Agent. Section 10. Limitation of Liability. The Escrow Agent shall be under no obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commission of any of its obligations or to protect any of the Commission's rights under any bond proceeding or any other contracts with or franchises or privileges from any state, county, municipality or other governmental agency or with any person. The Escrow Agent shall not be liable for any act done or step taken or omitted by it, or for any mistake of fact or law, or for anything which it may do or refrain from doing, except for its gross negligence or willful misconduct in the performance of any obligation imposed upon it hereunder. The Escrow Agent shall not be responsible in any manner whatsoever for the recitals or statements contained herein or in any proceedings taken in connection therewith. The Escrow Agent shall not be liable or responsible for any loss resulting from any investment made pursuant to this Agreement and in full compliance with the provisions hereof. INDSOI BIB 1372978v1 3 Section 11. No Personal Liability. None of the provisions contained in this Agreement shall require the Escrow Agent to use or advance its own funds or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights or powers hereunder. The Escrow Agent shall be under no liability for interest on any funds or other property received by it hereunder, except as herein expressly provided. Section 12. Resignation or Removal of Escrow Agent;.Successor Escrow Agent. (a) The Escrow Agent at the time acting hereunder may at any time resign and be discharged from the trusts hereby created by giving not less than sixty (60) days' written notice to the Commission, but no resignation shall take effect unless a successor Escrow Agent shall have been appointed by the Commission as hereinafter provided and the successor Escrow Agent shall have accepted such appointment, in which such event such resignation shall take effect • immediately upon the appointment and acceptance of a successor Escrow Agent. The Escrow Agent may be removed at any time by an instrument or concurrent instruments in writing, delivered to the Escrow Agent, by the Commission. In the event the Escrow Agent hereunder shall resign, be removed, be dissolved or shall be in the course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case the Escrow Agent shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the Commission. • (b) Every successor Escrow Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and the Commission, an instrument in writing accepting such appointment hereunder, and thereupon such successor Escrow Agent without any further act, deed or conveyance, shall become fully vested with all the rights, immunities, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of such successor Escrow Agent or the Commission, execute and deliver an instrument transferring to such successor Escrow Agent all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Escrow Agent shall deliver all securities and moneys held by it to its successor; provided, however, that before any such delivery is required to be made, all fees, advances and expenses, if any, of the retiring or removed Escrow • Agent shall be paid in full. Should any transfer, assignment or instrument in writing from the Commission be required by any successor Escrow Agent for more fully and certainly vesting in such successor Escrow Agent the estates, rights, powers and duties hereby vested or intended to be vested in the predecessor Escrow Agent, any such transfer, assignment and instruments in writing shall, on request, be executed, acknowledged and delivered by the respective parties. (c) Any corporation into which the Escrow Agent or any successor to it in the trusts created by this Agreement may be merged into or consolidated with, or any corporation resulting from any merger, consolidation or tax-free reorganization to which the Escrow Agent or any successor to it shall be a party, shall, if satisfactory to the District and a qualified depository for the District, he the successor Escrow Agent under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. • Section 13. Indemnification. To the extent permitted by law, the Commission shall defend, indemnify and hold the Escrow Agent harmless from all claims, demands and actions INOS01 BIB 1372978v1 4 resulting from or arising out of any alleged deficiency in the Escrow Account. This indemnity shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent. Section 14. Termination. Except as provided in Section 13 hereof; this Agreement shall terminate when (i) either the City Center Completion Project shall have been completed or the Project Agreement shall have been terminated, and (ii) any remaining cash shall have been paid • over by the Escrow Agent in accordance with the written instructions provided by the Commission, pursuant to Section 5 hereof. • Section 15. Severability. If any one or more of the covenants or agreements provided in this Agreement to be performed on the part of the Commission or the Escrow Agent should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and • agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. • Section 16. Successors or Assigns. All the covenants, promises and agreements in this Agreement contained by or on behalf of the Commission or by or on behalf of the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, whether so expressed or not. Section 17. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. Section 18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. Section 19. Notices. Any notice, request, communication or other paper shall be • sufficiently given and shall be deemed given when delivered or mailed, by registered or certified mail, postage prepaid or sent by telegram as follows: • If to the Commission: City of Carmel Redevelopment Commission 30 W. Main Street, Suite 220 Carmel, Indiana 46032 Attention: Executive Director If to the Escrow Agent: The Huntington National Bank 45 N. Pennsylvania Street, INHP22 Indianapolis, Indiana 46204 • Attention: Corporate Trust Department The Commission and the Escrow Agent may designate, in writing to the other parties hereto, any further or different addresses to which subsequent notices, requests, communications or other papers shall be sent. INDS01 BJB 137297bvI 5 • Section 20. Headings. The section headings used herein are for convenience of reference only, and in no way define, limit or describe the scope or intent of any provisions hereof. * * * * * • • • • INDS01 BJH 1372978v1 6 IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed for and on their behalf as of the day and year first herein above written. CITY OF CARMEL REDEVELOPMENT COMMISSION BY: . i.- -. .144.4/S/11 l villiam Hammeir, esident Attest: ■ Brad'. Meyer, ecretar� BOARD OF PUBLIC WORKS OF THE CITY OF CAR 4EL, INDIANA 1 By:! / /? :lames Brainard, Presiding 9tficer Attest: Secretary THE HUNTINGTON NATIONAL BANK, as Escrow Agent By: Printed: Title: Attest: By: Printed: Title: INDS01 BIB 13729711v1 7 • IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed for and on their behalf as of the day and year first herein above written. CITY OF CARMEL REDEVELOPMENT COMMISSION By: William Hammer, President Attest: Bradley F. Meyer, Secretary BOARD OF PUBLIC WORKS OF THE CITY OF CARMEL, INDIANA By: James Brainard, Presiding Officer Attest: Secretary THE HUNTINGTON NATIONAL BANK, as Escrow Agent IA By: I t_k.1.v id�i► Printe Title: Attest: By: (1,—W) Printed: RITA E. MENR;) Title: Vice President INDS01 BIB 1372972v1 7 LIST OF EXHIBITS EXHIBIT A—Copy of Project Agreement EXHIBIT B —Council Ordinance ))D I � • INDS01 BJB 1372978v} C-1 RESOLUTION NO. BPW-06-05-13-02 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY RATIFYING MAYORAL SIGNATURE ON CONTRACT WHEREAS, the executive officer of a municipality has the right and authority under Indiana law to enter into contracts on behalf of the municipal corporation; and WHEREAS, due to the exigencies of time, City of Carmel Mayor James Brainard executed that certain Escrow Agreement by and among the City of Carmel and the Huntington National Bank ("Agreement"), attached and incorporated herein as Exhibit "A"; and WHEREAS, the City of Carmel Board of Public Works and Safety now desires to ratify the above actions of Mayor Brainard and to adopt the same as the act of the Board. NOW, THEREFORE, BE IT RESOLVED by the Board of Public Works and Safety of the City of Carmel, Indiana, that: 1. The foregoing Recitals are incorporated herein by this reference. 2. The actions of Mayor James Brainard in executing the Agreement are hereby ratified and such actions are hereby approved and adopted by the Board as its own. 1-t— Approved and Adopted this S day of , 2013. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: `r1 h ✓ mes Brainard, Presiding Officer Date: Lori S. Watso , ember Date: r3 • �✓ i%ia �,—//7// Mary An Burke Member Date: 6- TES : W / :/ /!LA I ana Cordray, IA , lerk-Treasurer Date: (G 5 /3 Id.n,..m:.:k LaaMy dommumq„w. mwa,Um nramy maM„:,isoamrc-.cro.aW�auli/or 6 u4,emaFc.do/:wmo1