DDC Hotels, Inc/Eng/Landscape Maintenance AgreementLANDSCAPE MAINTENANCE AGREEMENT
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This LA SCAPE MAINTENANCE AGREEMENT (this "Agreemen ) is made this
day of ,N , 2017 (the "Agreement Date"), by and between DDC Hotels, Inc., a
Missouri corporation the "Owner"), and the City of Carmel, Indiana, an Indiana municipal
corporation, by and through its Board of Public Works and Safety (the "City").
WHEREAS, the Owner is the owner of the real estate located in the City of Carmel,
Hamilton County, Indiana as more particularly described herein (the "Real Estate");
WHEREAS, the Owner intends to construct and operate a hotel and restaurant on the
Real Estate;
WHEREAS, the City has entered into a Landscape Maintenance Agreement with the
Indiana Department of Transportation ("INDOT") recorded on September 30, 2013 as
Instrument No. 2013061198 (the "INDOT Agreement") pursuant to which the City has certain
rights to install and maintain certain landscaping within limited parameters of the INDOT right
of way as set out in the INDOT Agreement;
WHEREAS, in connection with the construction, development and operation of the hotel
and restaurant, the City has approved the installation of certain landscaping within a portion of
the INDOT right of way and a portion of City right of way; and
WHEREAS, the Owner, as a condition to placing certain landscaping in the INDOT
Right of Way (as defined below), is required by the City to install and maintain such landscaping
in accordance with certain terms and provisions of the INDOT Agreement and all applicable
ordinances of the City.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth and other
good and valuable consideration, the receipt of which is hereby acknowledged, the Owner and
the City agree on the terms and conditions that follow:
1. Subject Matter of Agreement. The Owner owns certain real estate which is
located in the City of Carmel, Hamilton County, Indiana and legally described in Exhibit "A"
attached hereto and incorporated herein by reference (the "Real Estate"). Adjacent to the Real
Estate is certain public right of way owned by INDOT (the "INDOT Right of Way") as shown
on Exhibit `B" attached hereto and incorporated herein by reference, and certain public right of
way owned by the City (the "City Right of Way") as shown on Exhibit "B". The Owner
desires, and the City pursuant to the terms of the INDOT Agreement hereby grants to Owner,
upon the terms and conditions provided herein, the right to install and maintain certain
landscaping within the INDOT Right of Way, and further grants to Owner the right to install and
maintain certain landscaping within the City Right of Way. All such landscaping shall be in
accordance with the Landscape Plan prepared by Context Landscape Architecture dated October
3, 2013, approved by the City on April 8, 2016 and approved by INDOT and attached hereto as
Exhibit "C" (the "Landscape Plan"). The landscaping within the City Right of Way shall be
installed and maintained in accordance with Section 2 below and applicable laws, ordinances,
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rules and regulations. The Owner's Installations within the INDOT Right of Way shall be
installed and maintained in accordance with Section 2 below, the INDOT Agreement and
applicable laws, ordinances, rules and regulations.
2. Maintenance and Installation by the Owner. Owner and the City agree that the
landscaping elements shown on page LS 102 of the Landscape Plan, including but not limited to
the prairie plantings and seeded lawn, shall be installed by INDOT, at INDOT's sole cost and
expense, and Owner shall have no obligation to install such landscaping elements ("INDOT's
Installations"). The remaining landscaping elements of the Landscape Plan, not shown on page
LS 102, shall be installed by Owner ("Owner's Installations"). The installation of the Owner's
Installations pursuant to the Landscape Plan was completed on or about July 1, 2016. The
Owner's Installations and the INDOT Installations in accordance with the Landscape Plan are
hereinafter referred to as the "Landscaping".
The Owner shall repair any damage to the INDOT Right of Way and the City Right of
Way to the extent caused by Owner's performance of the Owner's Installations or the Owner's
Obligations (as described herein). In performing the Owner's Obligations, the Owner shall not
unreasonably interfere with INDOT's use of the INDOT Right of Way or the City's use of the
INDOT Right of Way or the City Right of Way. The Owner, at its sole expense, shall be
responsible for the cost of the Owner's Installations and of performing the Owner's Obligations.
The Owner shall be responsible for the installation of the Owner's Installations consistent
with the Landscape Plan, and shall further be responsible for the maintenance of the Landscaping
consistent with the Landscape Plan, in such manner as to cause the Landscaping to be kept in a
first class manner and otherwise in accordance with Section 6 of the INDOT Agreement and the
City's applicable ordinances, rules and regulations (the "Owner's Obligations"), provided that
the Owner will deliver a maintenance plan to the City upon request, but not more frequently than
annually. The City and Owner acknowledge and agree that the Owner has completed the
Owner's Installations consistent with the Landscape Plan and as otherwise required herein.
The City shall notify the Owner in writing of any deficiency(ies) in the
performance of the Owner's Obligations. If the Owner has not commenced a cure of such
deficiency(ies) within thirty (30) days of the date the Owner receives the City's written notice of
such deficiency(ies), the City may take such action as is reasonable to remedy such
deficiency(ies) and the Owner shall reimburse the City for the actual and reasonable costs of
such work. Notwithstanding the foregoing, in the event of an emergency (defined as an
imminent threat of personal injury or material property damage) or matters related to public
health and/or safety, no prior notice shall be required, but the City shall thereafter notify the
Owner as is reasonable under the circumstances. The City shall promptly notify the Owner of
any claim by INDOT of a violation of the INDOT Agreement with respect to the Owner's
Installations or Owner's Obligations within the INDOT Right of Way.
All parties shall comply with all applicable Federal, State and Local laws, rules,
regulations and ordinances with respect to this Agreement. The Owner certifies, by signing and
submitting this Agreement, to the best of its knowledge and belief that it has complied with the
applicable provisions of Section 1352, Title 31, U.S. Code. The Owner represents and warrants
that the Owner and its subcontractors, if any, shall obtain and maintain all required permits,
licenses, registrations and approvals, as well as comply with all health, safety, and environmental
statutes, rules, or regulations in connection with the Owner's Installations and the performance
of the Owner's Obligations. The Owner affirms under the penalties of perjury that it does not
knowingly employ or contract with an unauthorized alien and shall not retain an employee or
contract with a person that it subsequently learns is an unauthorized alien. The Owner
specifically agrees that it, (a) will not discriminate against any employee, applicant for
employment to be employed in the performance of this Agreement, with respect to hire, tenure,
terms, conditions, or privileges of employment because of race, religion, color, age, sex,
handicap, national origin or ancestry, disabled veteran status or Vietnam era veteran status; (b) is
enrolled in and uses the E -Verify program of the Illegal Immigration Reform and Immigration
Responsibility Act of 1996, as amended, (the "E -Verify Program") to verify the work eligibility
status of all Owner's employees hired after Owner's enrollment in the E -Verify Program unless
the E -Verify program no longer exists, and will otherwise comply with Indiana Code 22-5-1.7 as
to any subcontractor used by Owner; and (c) does not knowingly employ or contract with any
authorized alien. Pursuant to Indiana Code 5-22-16.5, Owner certifies that it does not engage in
investment activities within the Country of Iran. Breach of these covenants shall be deemed a
material breach of the Agreement and the City may terminate the Agreement with verbal notice
to Owner.
3. Insurance. The Owner must: (i) obtain and keep in full force and effect,
insurance as set forth below, naming the City and INDOT as additional insureds on the
Commercial General Liability and Business Automobile insurance policies, and (ii) deliver to the
City upon request certificates of insurance evidencing such insurance being in full force and
effect.
Type Limits
Worker's Compensation Statutory
Commercial General Liability $2,000,000/occurrence
$5,000,000/aggregate
Business Automobile Liability $1,000,000 Combined Single Limit
4. Indemnification; Costs. The Owner shall indemnify and hold harmless the City
from all claims, losses, damages, demands, actions, liability, costs and expenses (including
reasonable litigation costs and attorneys' fees) to the extent caused by or resulting from (i) any
action by the Owner in connection with the exercise by the Owner of the rights granted in this
Agreement; (ii) the environmental contamination of the INDOT Right of Way or the City Right
of Way, as well as any off-site spreading of such contamination, to the extent caused by the
Owner; (iii) the breach of this Agreement by the Owner; or (iv) the failure of the Owner to
comply with the provisions of the INDOT Agreement relating to the Owner Installations or the
Owner Obligations. Notwithstanding the foregoing, the Owner shall not be liable for and shall
have no duty to indemnify the City for (i) any negligence or misconduct by the City in
connection with the exercise of its rights hereunder; (ii) any environmental contamination to the
extent caused by the City; (iii) the breach of this Agreement or the INDOT Agreement by the
City.
5. Modification and Termination. This Agreement shall remain in effect until
such time as the Landscaping no longer exists or the ownership of the Rights of Way no longer
exists, or as terminated as provided herein. Unless due to the termination of the INDOT
Agreement, this Agreement may not be terminated, modified, or amended unless such
termination, modification or amendment is signed by the Owner and the City and no agreement
or consent of any other persons shall be necessary for any such termination, modification or
amendment. In the event of the termination of the INDOT Agreement, this Agreement shall be
terminated as to the INDOT Right of Way only, in which case the Owner will continue to
perform the maintenance of the Landscaping consistent with the Landscape Plan, in such manner
as to cause the Landscaping within the City Right of Way to be kept in a first class manner and
otherwise in accordance with the City's applicable ordinances, rules and regulations. The Owner
shall cooperate with the City to obtain any necessary approval by INDOT to this Agreement.
The City may terminate this Agreement upon written notice to the Owner if such action is
required by INDOT or the INDOT Agreement.
6. Breach. In the event either party hereto breaches or otherwise defaults under or
with respect to any of the terms and conditions of this Agreement, then such party shall be liable
and responsible for all losses, liabilities, costs and/or expenses, including without limitation,
attorneys' fees and the costs of enforcing the terms of this Agreement as may be awarded to the
prevailing party by a court of competent jurisdiction, and all other legal and equitable remedies,
including, without limitation, injunctive relief.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
8. Notices. Any notice or communication provided for in this Agreement shall be
deemed sufficiently given if in writing, delivered by hand, by overnight courier or sent by
certified mail, postage prepaid to the party for whom it is intended, at the following address:
Owner: DDC Hotels, Inc.
721 Emerson Road, Suite 200.
St. Louis, Missouri 63141
Attn: Jacqueline Pollvogt, General Counsel
City: City of Carmel - Engineering
One Civic Square
Carmel, IN 46032
Attn: Director
Copy to: City of Carmel - Legal
One Civic Square
Carmel, IN 46032
Attn: Corporation Counsel
Either party may change its address by providing notice to Ahe other party as set forth in
this Section. Notice shall be deemed given on the date such notice is received or refused.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
OWNER:
DDC HOTELS, INC.
By: (,o- Z
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Printed:
Title:
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
B/es;rainard,
��Ja Presiding Officer
EXHIBIT A
Legal Description
A part of the Southeast & Southwest Quarter of Section 11, Township 17 North, Range 3 East in
Hamilton County, Indiana described as follows:
Commencing at the Southwest corner of said Southeast Quarter Section; thence North 00 degrees
48 minutes 07 seconds East 43.00 feet along the West line of said Southeast Quarter Section to
the POINT OF BEGINNING of the description said point being on the north right-of-way of 96th
Street; thence North 89 degrees 24 minutes 25 seconds East 14.00 feet along said north right-of-
way; thence North 0 degrees 12 minutes 33 seconds East 562.39 feet; thence North 09 degrees
44 minutes 03 seconds East 73.75 feet; thence Northeasterly 278.75 feet along an arc to the right
and having a radius of 412.50 feet and subtended by a long chord having a bearing of North 29
degrees 05 minutes 34 seconds East and a length of 273.47 feet; thence North 41 degrees 32
minutes 54 seconds West 13.92 feet to a rebar set on the proposed south right of way of I-465;
thence South 44 degrees 35 minutes 12 seconds West along said south right-of-way 537.91 feet
to a rebar set this survey; thence South 59 degrees 36 minutes 23 seconds West along said south
right of way 190.54 feet to a rebar set this survey; thence South 74 degrees 15 minutes 49
seconds West 145.60 feet to a rebar set on the proposed east right of way of U.S. 31; thence
South 2 degrees 17 minutes 30 seconds West along said east right of way 220.15 feet to a rebar
set this survey; thence South 36 degrees 23 minutes 53 seconds East along said east right of way
87.20 feet to a rebar set on the proposed north right of way of 96th Street; thence South 88
degrees 30 minutes 07 seconds East along last said north right of way 172.32 to a rebar set this
survey; thence South 67 degrees 02 minutes 41 seconds East 185.73 feet to the existing northern
boundary 96th Street; thence North 89 degrees 24 minutes 17 seconds East 143.62 feet along said
north right of way to the point of the beginning.
APPROVED
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EXHIBIT B
The INDOT Right of Way and City Right of Way
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EXHIBIT C
The Landscape Plan
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CARMEL. INDIANA ST. LOUIS, MO 63141
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