BPW/Carmel Clay Parks & Rec City of Cannel
Carmel/Clay Board of Parks&Recreation
11-03-03
MANAGEMENT AGREEMENT
AMENDMENT APPROVED AS TO FORM BY, `a
This Amendment to the Management Agreement("Amendment")by and between
the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety
("Owner") and the Carmel/Clay Board of Parks and Recreation("Manager") is made this
t(-7 day of.Dece dnbeic 2003.
RECITALS
WHEREAS, the following facts are true:
A. By Management Agreement(the"Agreement") executed by the Manager
and the Owner on or about July 14, 2003 and July 16, 2003 respectively,
(the"Agreement"),Manager, upon the terms and conditions set forth
therein, agreed to manage and develop Owner's land located at 10601
Hazel Dell Parkway, Carmel, Indiana 46033 (the"Real Estate" or"Hazel
Landing Park"); and
B. Manager was in the process of bidding out the construction contracts for
the development of Phase I of Hazel Landing Park when it discovered that
a portion of the real property on which it needed to place its improvements
was in fact owned by the Town of Fishers, Indiana(the"Fishers
Property"), more particularly described and illustrated on EXHIBIT A;
and
C. Pursuant to Manager's request,the Town of Fishers agreed to allow
Manager a temporary right to enter the Fishers Property so that Manager's
construction process would not be delayed; and
D. The temporary right of entry granted by Fishers was evidenced by a
document entitled"TOWN OF FISHERS/CARMEL CLAY BOARD OF
PARKS AND RECREATION RIGHT OF ENTRY" and dated July 22,
2003 (the"Right of Entry"); and
E. Such Right of Entry provides that it shall continue until such time as the
parties execute a complete long term lease in a form mutually acceptable
and authorized by the appropriate jurisdictional bodies; and
F. Such long term lease agreement has been or is in the process of being
completed, accepted and authorized by the appropriate jurisdictional
bodies(the"Lease Agreement"); and
G. On the effective date of the Lease Agreement,the Right of Entry shall
become null and void and of no further force and effect.
H. Manager now has management responsibility over the Fishers Property as
well as over the Real Estate; and
I. The Management Agreement is silent as to the means by which the Owner
will provide access to the Real Estate from Hazel Dell Parkway over an
existing improved access easement utilized by the Owner's Utility
Department, more particularly illustrated on the attached EXHBIT B.
incorporated herein by this reference, (the"Access Road"); and
J. The Management Agreement is silent as to the Manager's rights to
terminate should the Owner fail or refuse to fund the Manager's budgets,
all as provided in the Interlocal Agreement; and
K. Subsequent to the execution of the Management Agreement, Marathon
Ashland Pipe Line, LLC ("MAPL")has requested that the appropriate
parties execute a License Agreement to permit the planned encroachment
on and over the real property interest held by MAPL ("the MAPL Property
Interest") and obtain an indemnification all as set forth in the License
Agreement attached hereto as EXHIBIT C; and
L. Manager and the Owner wish to amend the Management Agreement so
that it addresses the Manager's termination rights,the Owner's obligation
to maintain and provide adequate and proper vehicular access to the Real
Estate and to include within the Manager's indemnification obligation, the
Access Road, the MAPL property interest, and the Fisher's Property.
NOW THEREFORE, in consideration of the premises, mutual covenants
and terms contained herein and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. ARTICLE II: THE REAL ESTATE ; TERM
The parties hereto agree that a new Section 2.3 is hereby added to Article
II of the Agreement as follows:
"2.3 In addition to the termination rights otherwise described in this Section
and/or in Article XII below, Manager shall have the right, pursuant to the
notice provisions hereof, to terminate this Agreement in the event that
Owner(a)fails to perform its obligations as set forth in this Agreement
and/or(b) fails to fund its proportionate share of Manager's annual budget
pursuant to the Interlocal Agreement. If Owner fails to perform its
obligations hereunder, and does not,within(60) calendar days from the
date on which it receives written notice of such failure from Manager, cure
the same, Manager may thereafter,but shall not be required to, either(a)
supply the omitted performance and any reasonable expense incurred by
Manager in doing so shall constitute a further obligation of Owner which
shall be payable within sixty(60) calendar days of Owner's receipt of an
itemized invoice from Manager regarding same, or(b) terminate this
Agreement and upon such termination deliver possession of the Real
Estate to Owner in its then condition, normal wear and tear and approved
improvements thereon and therein excepted. Notwithstanding the
foregoing, in the event of a bona fide emergency,Manager may perform
such of the Owner's obligations hereunder as are reasonably necessary to
resolve the emergency only, at Owner's cost and expense.
The parties hereto agree that a new Section 2.4 is hereby added to Article
II of the Agreement as follows:
"2.4 Owner hereby agrees to provide at no additional cost to Manager,
reasonable vehicular access from Hazel Dell Parkway to the Real Estate
over the existing roadway more particularly illustrated on Exhibit"B"
attached hereto and incorporated herein (the Access Road").
2. ARTICLE X: INDEMNITY
The parties hereto agree that Sections 10.1 and 10.3 of the Agreement
shall be amended to read as follows:
"10.1 Manager agrees to indemnify and hold Owner harmless from any and all
liabilities, losses, costs, damages and expenses, including, but not limited
to, attorney fees, Owner incurs or is subject to on account of or as a result
of any bodily injury to, or the death of, any person, or the loss or
destruction of, or damage to, any property, which injury, death or damage
arises, or is alleged to arise, out of Manager's possession or use of, or
actions on,the Real Estate, the Fisher's Property, the MAPL Property
Interest and the Access Road, unless such injury, death or damage is the
result of Owner's negligent conduct or intentional action on the Real
Estate,the Fisher's Property,the MAPL property interest and/or the
Access Road. This obligation shall survive the termination of this
Agreement.
10.3 Owner agrees to indemnify and hold Manager harmless from any and all
liabilities, losses, costs, damages and expenses, including, but not limited
to, attorney fees,Manager incurs or is subject to on account of or as a
result of any bodily injury to, or the death of, any person, or the loss or
destruction of, or damage to, any property, which injury, death or damage
arises, or is alleged to arise, out of Owner's use of, or actions on, the Real
Estate, the Fisher's Property, the MAPL Property Interest and the Access
Roach unless such injury, death or damage is the result of Manager's or the
Town of Fishers'negligent conduct or intentional action on the Real
Estate,the Fisher's Property,the MAPL property interest and/or the
Access Road. This obligation shall survive the termination of this
Agreement.
3. NO OTHER CHANGES.
Except for the changes expressly contained herein, the Management
Agreement shall not be affected by this Management Agreement Amendment and
all of its existing terms and conditions shall continue in full force and effect. To
the extent any term or condition of this Management Agreement Amendment not
expressly amended hereby, is inconsistent with any term or condition of the
Management Agreement,the former term or condition shall prevail.
IN WITNESS WHEREOF, Owner and Manager have executed this
Amendment on the j1 day of Neemlxl , 2003, and if this Amendment is
executed in counterparts, each shall be deemed an original.
CITY OF CARMEL, INDIANA("Owner") PARKSCAROF
MEL-CLAY AND RECREATION
ON
("Manager")
By and through its Board of Public Works
and Safety
BY:
e B inard, Presiding Officer Authorized Signature pp
Date: '<>SQ ti G H. ni yen Presl el'ot. i
�� Printed Name and Title
tIVAI'LL Date: � 1 T
Mary A$ ke,embe ,
Date: `rJ
Lori Watson,Membe
Date:
I a i'7 03
ATTEST
ATTEST:
Dia L. Cordray, IAMCI, Clerk-Treasurer Sally Shapiro, Secretagi
O-Phi, A. (-;'I""
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared James Brainard, Mary Ann Burke and Lori Watson,by me known to be the
Members of the City of Carmel Board of Public Works and Safety, and Diana L.
Sandra N
bhnson, ?Qo��k €Er
Cordray, Clerk-Treasurer of th&City of Carmel, Indiana,who acknowledged the
execution of the foregoing"MANAGEMENT AGREEMENT AMENDMENT" on
behalf of the City of Carmel, Indiana.
WITNESS my hand and Notarial Seal this 11 day of l Ce-vm ape,
2003. e . axle)
Notary Public
My Commission Expires: C• Inn bcv\i(S
Printed Name
f f/i7 /08 My County of Residence`- --
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared S .2 SO.v .sA.L Fd• 11110, the ?resit&s ' of Carmel-Clay
Board of Parks and Recreation("Manager"), who acknowledged the execution of the
foregoing"MANAGEMENT AGREEMENT AMENDMENT" as his/her voluntary act
and deed.
WITNESS my hand and Notarial Seal this/'F day of Ala vsfrn4 y�
2003 . - l —(e —
1/417 Public c AY -row,)sH/P re-usreL
ub i .
My Commission Expires: e rI/ Age-Ad
Printed Name
s=/ec•F : Po:). c; My County of Residence: /tarn LTDt'-
This instrument was jointly prepared by Douglas C.Haney, Carmel City Attorney,One Civic Square,
Cannel,Indiana 46032 and Debra Grisham,Park Board Attorney, Smyth Hester&Grisham,LLP, 11550
North Meridian Street,Cannel,Indiana 46032.
EXHIBIT A
Page 1 of 2
LEGAL DESCRIPTION OF THE FISHERS PROPERTY
Part of the Northwest Quarter Section 10, Township 17 North,
Range 4 East in Hamilton County, Indiana, being more
particularly described as follows:
Beginning at a stone marking the Northwest corner of said
Quarter Section; thence North 89 degrees 06 minutes 43
seconds East along the North line of said Quarter Section a
distance of 395.37 feet to a point in the centerline of White
River; thence meandering generally along said centerline
South 54 degrees 49 minutes 16 seconds West a distance of
482.37 feet to a point on the West line of said Section; thence
along said West line North 00 degrees 13 minutes 22 seconds
West a distance of 271 .78 feet to the Beginning Point,
containing 1.2 acres, more or less.
EXHIBIT A
Page2of2
DEPICTION OF THE FISHERS PROPERTY
Gr
FA q / / Gi'k
04
4 'RC,-�A / 's ;� I POINT OF BEGINNING
/\Pad J / / y1� I SE CORNER SE 1/4
& c �p / /i 6? ` SEC 4-17N-4E v o
`' / / NW CORNER NW 1/4 N m Z.
a o
.�\�/ g x y —SEC 10-17N-4E -< y o
/ 2 / `, G+`'� STONE FOUND DOWN/0.5 5 c 5 p
V/ // 4 /x o I S8931'12"W (M) 61 a /x CAP"STAMPEDE IS89'54�59"W((D) m N89'31'12"E (M)
x "SCHNEIDER ENG 106.50' (D) PIPPE NNE N89'06'43'E (D)
MARKNE FIRM #0001" SET , 395.3T (D&M) `\ S01
MARKE• R' -.r=_ - `1- _ —
N89'55150"W (M) (� ���y*
ITH LINE SE 1/4 SEC 4-17N-4E 268.94' (M) zo hh
WOVEN WIRE S89'54'49"W (D) &I 5 I PARCEL II �S
FENCE IDES 268.74' (D) o TOWN OF FISHERS
FROM 0.6' N TO --m z z INSTR #8906342" t*.'
2.1' N OF LINE CITY OF CARMEL v J W o 5 k�a R) 1
h
INSTR #200100070412 °° N o
5/8" REBAR WITH CAP STAMPED Ern
�\ CENTERLINE WHITE RIVER (PER DEED)
"SCHNEIDER ENG FIRM #0001 FOUND I v'~
12' N OF MEAN HIGH WATER MARK
5/8" REBAR WITH CAP STAMPED
"WEIGHE ENG FIRM #0012" FOUND
0.9' N & 0.4' E OF SCHNEIDER —WEST LINE NW 1/4 SEC 10-17N-4E
REBAR I
PROJECT INFORMATION: LANDING
pT(SIN G PARK
�+"+i
o I m HAZEL 1 �t� jJ
Fp AT.`5 �V1
O a A'J .OZ
o� - ALTA/ACSM LAND TITLE SURVEY
0o w
m RETRACEMENT SURVEY
CARMEL IN 46032
10601 HAZEL DELL PARKWAY,
� Wo CLIENT INFORMATION:
s CARMEL CLAY BOARD OF PARKS AND RECREATION
1055 THIRD AVENUE ST, CARMEL, IN 46032
EXHIBIT B
ACCESS ROAD
At
pt / / )0'y
C/*t Ag�`�J`y/ / ' / sO ` +�� POINT OF BEGINNING
� Q�o) / ,` SE CORNER SE 1/4
vP�Vp��o /x NCO'+ SEC 4-17N-4E
o�` vp�` / Y NW CORNER NW 1/4 co z v o
/� / / o� x 1 ,,,,'' r SEC 10-17N-4E n' N o > o
// / o xc ` ' \' STONE FOUND DOWN[0.5' a c rnm-
/ S89'31'12"W (M) cmn c,
a x/ 5/8" REBAR WITH 15117' (M) rn
/ CAP STAMPED S89'54'59"W (D) Ngg'31'12"E (M)
\ �PELINE x/ °SCHNEIDER ENG 106.50' (D) PIPELINE N89'06'43"E (D)
X MARKER FIRM #0001 SET MARKER —
/i _ • -- . , r, „k Vt _ l - 395.37' (D&M) so
NO
ITH LINE SE 1/4 SEC 4-17N-4E N89 55 50 W (M) o ����
268.94 (M)
FENWOCE N ESE S89'54'49"W (D) o I TOWN OF FISHERS El ' PARCEL II \`Shy
268.74' D
FROM0.6' NTO O 01
rn Z Z INSTR #8906342 rye`
2.1' N OF LINE 5 iv o 0 ,\0
CITY OF CARMEL v J w o SyLk9�� or
INSTR #200100070412 N o Olt
o �m
5/8" REBAR WITH CAP STAMPED I ¢°
v €
"SCHNEIDER ENG FIRM #0001° FOUND I _-________ CENTERLINE WHITE RIVER (PER DEED)
12' N OF MEAN HIGH WATER MARK
5/8" REBAR WITH CAP STAMPED
"WEIGHE ENG ARM i0012° FOUND
0.9' N & 0.4' E OF SCHNEIDER `WEST LINE NW 1/4 SEC 10-•17N-4E
REBAR I
2 y I1,,9 r 2T1 ° > PROJECT INFORMATION
a
0 a PARK
=lc) l HAZEL LANDING
_, �`z" . w
is u w
ALTA/ACSM LAND TITLE SURVEY
II .
O
w � m o RETRACEMENT SURVEY
e CA "El 10601 HAZEL DELL PARKWAY, CARMEL, IN 4603E
"" m �� CA CLIENT INFORMATION:
o CARMEL CLAY BOARD OF PARKS AND RECREATION
1055 THIRD AVENUE St, CAR!®. IN 46032