CRC and Palladium Agreement 2011 •
PROGRAMMING AND FACILITY MANAGEMENT,
OPERATIONS AND MAINTENANCE AGREEMENT
(The Palladium)
This Programming and Facility Management, Operations and Maintenance Agreement
(the "Agreement'), by and between the City of Carmel Redevelopment Commission ("CRC")
and The Center for the Performing Arts, Inc. ("CFPA"), is entered into this 14th day of March,
2011.
RECITALS
WHEREAS,the CRA holds fee title to the Palladium;
WHEREAS, pursuant to the Bond Lease, the CRA has leased the Palladium to CRC.
The Bond Lease authorizes CRC to sublet the Palladium to any qualified 501(c)(3) organization,
as defined in the Internal Revenue Code;
WHEREAS, the CFPA is an Indiana not-for-profit corporation and has qualified for the
status as a 501(c)(3) organization under the Internal Revenue Code;
WHEREAS, CRC desires to assign its rights to occupy, use, operate and manage the
Palladium on the terms and conditions of this Agreement, and the CFPA desires to accept such
assignment and to assume the obligations to operate and manage the Palladium on the terms
and conditions set forth in this Agreement; and
WHEREAS, CRC and CFPA desire to enter into this Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, CRC and the CFPA agree as follows;
1. Definitions.
Amphitheater shall mean the outdoor amphitheater situated on the Center Green.
Booking Services shall mean booking acts and/or performers, and events to be held, in the
Palladium that are consistent with the Mission Statement and the terms and conditions of this
Agreement, and providing any other customary related services.
Bond Lease shall mean that certain Lease Agreement between the CRA, as Lessor, and CRC,
as Lessee, dated as of July 12, 2005, as amended by that certain Addendum dated as of
December 6, 2005.
Casualty Damage shall mean damage to, or destruction of, all or any portion of the Palladium
by fire or any other casualty.
Center Green shall mean that certain real estate within the City Center Site that is delineated
as the "Center Green"on Exhibit A.
City shall mean the City of Carmel, Indiana.
City Center shall mean a redevelopment project on the City Center Site that is intended to
provide a balanced mixture of residential facilities, retail facilities, dining options, a corporate
office campus, and public amenities.
City Center Declaration shall mean that certain Declaration of Covenants and Easements with
respect to the City Center Site recorded as Instrument No. 2000000058577 in the Office of the
Hamilton County Recorder, as modified by that certain: (a) Confirmation (Kestner Site is part of
the "Retail Parcel") recorded in the Office of the Hamilton County Recorder as Instrument
Number 200200025755; (b)Amendment to Declaration of Covenants and Easements recorded
in the Office of the Hamilton County Recorder as Instrument Number 200100061268; (c)
Second Amendment to Declaration of Covenants and Easements recorded in the Office of the
Hamilton County Recorder as Instrument Number 200300059243; (d) Third Amendment to
Declaration of Covenants and Easements recorded in the Office of the Hamilton County
Recorder as Instrument Number 200300110032; (e) Fourth Amendment to Declaration of
Covenants and Easements recorded in the Office of the Hamilton County Recorder as
Instrument Number 200500072979.
City Center Site shall mean that certain real estate depicted on Exhibit A.
Claims shall mean all claims, judgments, liabilities, losses, costs, and expenses (including,
without limitation, attorneys'fees and court costs).
Commencement Date shall mean the date of this Agreement.
CRA shall mean the City of Carmel Redevelopment Authority.
CRC shall mean the City of Carmel Redevelopment Commission.
Cure Period shall mean a period of 60 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 60 days, despite reasonably diligent efforts, then the 60 day period shall be extended as
reasonably may be necessary for the defaulting party to remedy the failure, so long as the
defaulting party: (a) commences to remedy the failure within the 60 day period; and (b) diligently
pursues such remedy to completion.
Ending Date shall mean the first to occur of. (a) the expiration of the Term; or (b) the
termination of this Agreement pursuant to the terms and conditions hereof.
Event of Default shall have the meaning set forth in Section 11.
Extension Terms shall mean five consecutive periods of ten years each.
Fundraising Services shall mean: (a)working to obtain sponsorships and naming rights for the
Palladium; and (b) raising funds for: (i) any required improvements to the Palladium; (ii)the
acquisition of equipment and systems for the Palladium; (iii) the general operation of the
Palladium; and (iv)the Palladium Endowment.
Incurable Financial Default shall mean the following: (a) the adjudication of the CFPA as a
bankrupt or insolvent; (b) the making by the CFPA of a general assignment for the benefit of
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creditors; (c) the appointment of a trustee or receiver for the property of the CFPA, if such
appointment is not vacated or set aside within.60 days from the date of such appointment; (d)
the filing of an involuntary petition in bankruptcy or for reorganization or arrangement against
the CFPA, if such involuntary petition is not vacated within 60 days after the filing thereof;
(e)the filing by the CFPA of a voluntary petition in bankruptcy or for reorganization or
arrangement; (f)the filing by the CFPA of an answer admitting bankruptcy or insolvency; or(g)
the CFPA's seeking or agreeing to reorganization, arrangement, or appointment of a trustee or
receiver.
initial Term shall mean the initial term of this Agreement, as set forth in Section 3.
Insurance Proceeds shall mean all insurance proceeds that are recovered, as a result of
Casualty Damage, from insurance policies maintained pursuant to the terms and conditions of
this Agreement.
Insurance Requirements shall mean the requirements set forth on that certain Schedule of
Palladium Insurance Requirements attached hereto as Exhibit B.
Intended Use shall mean the use of the Palladium as a world-class concert hall.
Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable
governmental rules, regulations, guidelines, orders, and/or decrees.
Management Services shall mean providing property management services for the Palladium
to satisfy the terms and conditions of Subsection 4(b}and any other customary related services.
Mission Statement shall mean the Mission Statement for the Palladium and the other arts
venues located on the City Center Site attached hereto as Exhibit C, as the same may be
modified from time to time by the CFPA with the consent of CRC.
Non-Profit Status Default shall mean the loss of the status of the CFPA as a 501(c)(3)entity.
Non-Renewal Notice shall mean written notice that either the CFPA or CRC, as applicable,
does not want the term of this Agreement to be renewed for the next ten year extension period.
Operating Accounts shall mean one or more accounts: (a) established by the CFPA, in its
name, at one or more financial institutions; (b) insured by the Federal Deposit Insurance
Corporation or its successor, and (c) designated to be used: (i) as the repository of Operating
Revenues; (ii) for the management, operation, maintenance, repair, and replacement of the
Palladium as provided in this Agreement; and (iii) otherwise to satisfy the responsibilities of the
CFPA under this Agreement.
Operating Costs shall mean all costs and expenses of: (a) managing, operating, maintaining,
repairing, and replacing the Palladium (including, without limitation, capital repairs and
replacements that are the responsibility of the CFPA hereunder); and (b) otherwise satisfying
the obligations of the CFPA under this Agreement.
Operating Revenues shall mean all revenues obtained in connection with acts and/or
performers that perform, and events that are held, in the Palladium.
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Palladium shall mean that certain world-class concert hall constructed on the Palladium Site
(Parcel 7C)with seating for at least 1600 patrons.
Palladium Site shall mean that certain real estate within the City Center Site that is delineated
as the"Palladium Site"on Exhibit A.
Palladium Endowment shall mean an account or series of accounts held in the name of the
CFPA, which account or accounts shall hold primarily cash, stocks, bonds, securities, and other
liquid or readily marketable assets, the use of which are dedicated to the improvement,
expansion, operation, and support of the Palladium.
Production Services shall mean providing production management for the performances and
events that are held in the Palladium in a manner consistent with the Mission Statement and the
terms and conditions of this Agreement.
Quarterly Summary shall mean a statement setting forth: (a) the unaudited financial
statements of the CFPA for the previous fiscal quarter (including a statement of financial
position, statement of activities and a year to date comparison to the CFPA's annual budget);
(b) the balance, at the close of the previous calendar quarter, of the Palladium Endowment by
account and type of investment; (c) a fundraising report; and (d)a separate unaudited statement
setting forth the Operating Revenues of the Palladium for the previous fiscal quarter and year to
date.
Records shall mean books and records with respect to the Operating Accounts, Operating
Revenues, Operating Costs, and the Palladium Endowment, together with customary supporting
records, statements, and receipts.
Rules shall mean rules and regulations governing the use of the Palladium, which rules and
regulations shall be consistent with the Laws and the terms and conditions of the City Center
Declaration.
Shortfall shall mean the amount by which the Operating Costs incurred in connection with
carrying out a particular Yearly Plan exceed all sources of funding for payment of such
Operating Costs (which sources shall include, without limitation, ticket sales, booking revenues,
contributions, and the investment income and gains generated by the Palladium Endowment).
Term shall mean the Initial Term and all exercised Extension Terms.
Utility Charges shall mean charges, costs, and expenses incurred in connection with obtaining,
maintaining, and the use of utilities servicing the Palladium.
Yearly Budget shall mean the budget for carrying out a particular Yearly Plan, which budget
shall: (a) identify: (i) projected sources of funds (including, without limitation, ticket sales,
booking revenues, contributions, and the Palladium Endowment); and (ii) projected Shortfalls;
and (b) be prepared by the CFPA.
Yearly Plan shall mean a plan detailing the operations (including booking) and fundraising
goals (including efforts to obtain sponsorships and naming rights) for the Palladium for the
following calendar year, which plan shall be prepared by the CFPA.
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Yearly Summary shall mean a statement setting forth: (a) the audited financial statements of
the CFPA for the previous fiscal year (including a statement of financial position, statement of
activities, a statement of cash flows and a comparison to the CFPA's annual budget for such
fiscal year); (b) the balance, at the close of the previous calendar quarter, of the Palladium
Endowment by account and type of investment; (c) a fundraising report; and (d) a separate
unaudited statement setting forth the Operating Revenues of the Palladium for the previous
fiscal year.
2. Ownership. Fee simple title to the Palladium and the Amphitheater shall be and remain
in CRC, CRA, or another agency or department of the City..
3. Term. The Initial Term shall: (a) commence on the Commencement Date; and
(b)expire on the date that is 50 years after the Commencement Date. The term of this
Agreement automatically shall be extended for each successive Extension Term unless, on or
before the date that is two years before the expiration of the Initial Term or the then current
Extension Term, as applicable, either CRC or the CFPA delivers a Non-Renewal Notice to the
other. If either party delivers a Non-Renewal Notice to the other party, then this Agreement
shall terminate at the expiration of the Initial Term or the then current Extension Term, as
applicable.
4. Obligations.
(a) General Obligations. The CFPA, on behalf of CRC, shall have the
exclusive right and responsibility for managing and operating the Palladium at all
times: (i) for the Intended Use; and (ii) in a manner consistent with the Mission
Statement. The responsibilities of the CFPA shall include, without limitation:
(i) performing the Fundraising Services and implementing a
related fundraising program and directing fundraising efforts;
(ii) directing the day-to-day and other operations of the
Palladium in a manner that: (A) is consistent with the Mission
Statement; and (B)complies with the terms and conditions of this
Agreement, including Subsection 4(b) and the Insurance
Requirements;
(iii) directing the booking of acts and/or performers to perform,
and events to be held, in the Palladium, which acts, performers,
and events shall be of a nature consistent with the Mission
Statement, and providing programming opportunities for local
group performances, including, without limitation, the entities listed
on Exhibit D attached hereto;
(iv) directing the production management of-performances and
events that are held in the Palladium, which performances and
events shall be held and produced in a manner consistent with the
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Mission Statement;
(v) investing, managing, and expending: (A) Operating
Revenues; and (B) assets of the Palladium Endowment; in a
manner consistent with the terms and conditions of this
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Agreement. Paying all Operating Costs and its other financial
obligations as they become due, subject to CFPA's right to contest
disputed bills in good faith and withhold payment therefor. All
Operating Revenues and all funds, securities or other assets or.
property at any time earned by, contributed to or otherwise
obtained by the CFPA, including funds and securities on deposit in
the Operating Accounts and the Palladium Endowment, shall be
the exclusive property of the CFPA or the Palladium Endowment,
as the case may be; and
(vi) programming, managing, operating and maintaining the
Palladium in a manner consistent with other world-class concert
halls.
(b) Maintenance Obligations. At all times during the Term, the CFPA shall be
responsible for keeping and maintaining the Palladium in: (i) good and safe
order, condition, and repair; (ii) a clean and sightly condition; (iii) compliance with
all Laws; and (iv) an overall condition comparable to other world-class concert
halls. Without limiting the generality of the foregoing, the CFPA shall be
responsible for: (A) implementing a janitorial program of cleaning; (B)
implementing a regularly scheduled program of preventive maintenance and
repair; and (C) providing all maintenance, repairs and replacements to the
Palladium, including those of a capital nature (subject to the final sentence of this
Subsection 4(b)), necessary to comply to the requirements of this Agreement.
Promptly after the Commencement Date, CRC shall assign to the CFPA all
applicable warranties from manufacturers, suppliers, and contractors with respect
to the Palladium. From and after the date of such assignment, CRC shall assist
the CFPA with the enforcement of the foregoing warranties, as reasonably
requested by the CFPA. Notwithstanding the foregoing, CRC shall be
responsible for (1) all HVAC, electrical and other equipment located outside of
the Palladium building and (2) snow removal on the sidewalks and driveways
serving the Palladium. In the event that any HVAC or electrical equipment inside
the Palladium building or any of the foundation, structural supports, outside walls
and columns, outside stairs or the roof.of the Palladium requires any type of
capital repair or replacement, CFPA will consult with CRC and the parties shall
work together to obtain an appropriation from the City to pay for any such capital
expense (but in no event shall such expense be the responsibility of the CFPA to
the extent that such expense exceeds any capital reserve then being maintained
by the CFPA).
(c) Insurance Obligations. The CFPA shall be responsible for maintaining in
full force and effect throughout the Term policies of general public liability
insurance (but not casualty insurance) that satisfy the Insurance Requirements.
The policies of general liability insurance maintained for the Palladium shall: (i)
name CRC, CRA and the City as an additional insureds; and (ii) provide that
such policies shall not be modified or cancelled without written notice to CRC at
least 30 days in advance. The CFPA shall furnish to CRC certificates of all
insurance policies: (i) required to be maintained by the Insurance Requirements;
and (ii) otherwise maintained by the CFPA with respect to the Palladium. The
City shall maintain casualty insurance on the Palladium:
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(d) Utilities. The CFPA shall be responsible for the payment of all Utility
Charges.
(e) Inspection. The CFPA shall permit CRC and its employees and agents to
enter the Palladium, at all times upon not less than 24 hours' advance notice and
during usual business hours, for the purpose of inspecting the Palladium;
provided that CRC and its employees and agents shall conduct such inspections
in a manner that will not interfere unreasonably with the operations of the
Palladium.
(f) • Access. The CFPA shall permit the Mayor and his guests to enter and
tour the Palladium at any time for economic development purposes and, with
reasonable advance notice under the circumstances, for non-economic
development purposes; provided that the Mayor shall conduct such tours in a
manner that will not interfere unreasonably with the operations of the Palladium.
(g) Declaration. The CFPA shall be responsible for satisfying the obligations
of CRC under the City Center Declaration, but only to the extent that such
obligations extend beyond the obligations of CRC under this Agreement.
Accordingly, CRC shall satisfy all of CRC's obligations under the City Center
Declaration, to the extent that such obligations are also obligations of CRC under
this Agreement.
(h) Status. The CFPA shall maintain its legal existence and its status as a
qualified 501(c)(3) organization.
(i) Professionals. In connection with satisfying its responsibilities under this
Section 4, the CFPA may retain and coordinate the services of booking agents,
facilities operators, financial, legal, accounting, investment and other advisors,
fundraisers, property managers, production managers and other third parties, as
each of the foregoing is appropriate for the operation of the Palladium as a world-
class performing arts center and concert half; provided that all agreements
entered into by the CFPA shall comply with the terms and conditions of Section 8
of this Agreement;
(j) Parking. CFPA will be responsible for parking for events held at the
Palladium.
5. Rights and Limitations.
(a) Quiet Eniovment. CRC covenants and warrants that it has all necessary
right, title and interest in the Palladium to enter into this Agreement and to grant
to the CFPA the rights set forth herein. CRC agrees that, subject to Subsections
11(a) and (b) hereof, the CFPA shall, at all times during the Term, have
peaceable and quiet enjoyment of possession of the Palladium and the exclusive
right to occupy and use the Palladium in a manner consistent with the terms and
conditions of this Agreement, without any manner of hindrance from CRC or any
other person claiming under it.
(b) Rights. The CFPA shall have the right, without first obtaining the consent
of CRC or any other person, to take such actions as its deems to be necessary
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or appropriate to satisfy its responsibilities under this Agreement, including,
without limitation, the right to:
(i) hire, discharge, and supervise all labor, employees, and
contractors required for the management, operation, maintenance,
and repair of the Palladium; provided that all agreements entered
into by the CFPA Shall comply with the terms and conditions of
Section 8 of this Agreement;
(ii) adopt and enforce Rules;
(iii) install any signs that the CFPA deems to be necessary or
appropriate; provided that all such signs shall comply with the
Laws and the City Center Declaration;
(iv) make interior, non-structural alterations to the Palladium;
provided that, prior to making such alterations, the CFPA shall
provide copies of the plans therefor to CRC for their review; and •
provided further that, unless the parties hereto otherwise agree,
any material aesthetic alterations to the Palladium shall require
the written approval of David M. Schwarz or such other architect
mutually acceptable to CRC and the CFPA. As used herein,
aesthetic alterations shall not include changes to the back of
house, lighting or sound equipment and shall include, for example,
changes to paint colors or patterns, carpeting, seating, woodwork,
stonework and the like;
(v) make exterior or structural alterations to the Palladium;
provided that: (A) prior to making any such alterations, the CFPA
shall provide copies of the plans and specifications therefor to
CRC for their review and approval,. which approval shall not be
withheld unreasonably; and (B) if CRC fails either to approve or
reject such plans and specifications within 60 days after receipt
thereof, then CRC shall be deemed to have approved such plans
and specifications; and
(vi) sell naming rights to the Palladium or any portion or
component thereof; provided, that any sale of naming rights to the
Palladium itself(e.g., the "X Company Palladium").shall be subject
to CRC prior written approval.
(c) Limitations. In discharging its obligations under this Agreement, the
CFPA shall comply with: (i)the Laws; (ii)the City Center Declaration; and (iii) the
Insurance Requirements. The CFPA shall have the right to contest the
application of any Law; provided during such contest the CFPA shall comply with
the Law in question if failing to comply with such Law would: (A) cause CRC to
be subject to any criminal liability; or(B) cause the Palladium, or any part thereof,
to be in imminent danger of being foreclosed, forfeited, lost, or barred from use.
CRC shall cooperate with the CFPA in connection with any contest pursuant to
the terms and conditions of this Section, so long as such cooperation does not
result in any cost or expense to CRC. The CFPA shall not make alterations to
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the Palladium, except: (i) as permitted pursuant to Subsection 5(b)(iv); or (ii) to
the extent approved in writing (or deemed to be approved) by CRC pursuant to
Subsection 5(b)(v).
6. City and CRC Private Boxes, The City and CRC shall have the use of the respective
Private Boxes indentified on Exhibit E attached hereto for all events and performances at the
Palladium; provided that seats in the Private Boxes will be released for sale to the general
public on the date that is two weeks prior to each performance unless, prior to such date, the
City Mayor's office has notified the CFPA by telephone, email or other means that such seats
will be used by the City and/or CRC. Such notice shall specify whether the Private Boxes are to
be used for City and/or CRC business or whether the use is personal. In the event the use of
the Private Boxes is personal, the user will pay for such Private Boxes (at the same rates as the
general public). The City and CRC agree not to exceed the capacity of such Private Boxes and
use such Private Boxes in accordance with the Rules as established by CFPA.
7. Center Green and Amphitheater.
(a) The CFPA shall not have any rights or obligations hereunder with respect to the
Center Green (other than its rights and obligations in connection with the Amphitheater
set forth herein). However,the CFPA shall have the right to review and comment on any
applications or requests for use of the Center Green before any permit is issued for its
use, with a goal toward ensuring an orderly coordination of parking, crowd control, noise
and other aspects of events occurring at the Palladium and on the Center Green. CRC
will ensure that the CFPA receives written notice of(i) any application or other request to
use the Center Green within 1 business day after when such application or request is
placed on the agenda of the applicable City agency responsible for issuing such permits;
and (ii) any approved permits for use of the Center Green within at least 2 business days
after the date of such approval; except in emergency or extraordinary circumstances, for
example use for a ceremony to honor a fallen police officer or other public servant.
(b) The CFPA shall not have any rights or obligations hereunder with respect to the
Amphitheater until the Amphitheater has been fitted with wiring and other permanent
infrastructure improvements in order to construct a permanent lighting system, a
permanent sound system and any other permanent infrastructure improvements
reasonably required to operate as a performing arts venue. Once those permanent
improvements are complete, CFPA shall have the same rights and obligations for the
programming, facilities management, operations, maintenance, naming rights and
funding of the Amphitheater as it has for the Palladium as set forth herein. Until such
permanent improvements are complete, CRC shall retain control of the Amphitheater;
provided, however, during such time as CRC controls the Amphitheater it will not
schedule performances or events in the Amphitheater during the times that
performances or events are being held at the Palladium, the Tarkington Theater or the
Studio Theater operated by CFPA. Any sale of naming rights to the Amphitheater will be
subject to CRC prior written approval, and the parties will cooperate with each other to
establish the financial and other criteria for those naming rights. Notwithstanding the
foregoing, the parties acknowledge that the Carmel Rotary Club shall be entitled to
name recognition commensurate with the contributions it has made to the Amphitheater.
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8. Contracts.
(a) Approval. The CFPA (as opposed to CRC) shall be a party to all
agreements entered into for the purposes of satisfying the responsibilities of the
CFPA hereunder; provided that any agreement that does not, by its terms, expire
prior to the expiration of the Term shall be subject to approval by CRC.
(b) Assignment. On the Ending Date, the CFPA shall assign to CRC (or a •
party designated by CRC) all: (i) agreements approved by CRC that do not, by
their terms, expire prior to the end of the Term; and (ii) other agreements that
CRC agrees in writing to assume. All agreements not assigned to CRC shall be
terminated by the CFPA as of the Ending Date. All agreements entered into by
the CFPA shall contain terms that are consistent with the requirements of this
Subsection 8(b).
9. Funding.
(a) Yearly Budget. On or before April 30 of each year during the Term, the
CFPA shall submit the Yearly Plan and the Yearly Budget to CRC for its review
(but not for their approval, which shall not be required).
(b) Budgeted Shortfalls. The parties do not anticipate Shortfalls after the
date on which sufficient funds have been raised to establish a Palladium
Endowment in an amount necessary to generate investment income sufficient to
cover any Shortfalls that would otherwise occur.
(c) Financial Updates. During the Term, the CFPA shall provide to CRC: (i)
the Quarterly Summaries, within 30 days after the end of each fiscal quarter;
(ii) the Yearly Summaries, within 120 days after the end of each fiscal year; and
(iii) the other Financial Reports listed on Exhibit F attached hereto, at the times
' set forth therein.
(d) Records. The CFPA shall: (i) prepare and keep a permanent, accurate,
full, and complete set of the Records; and (ii) keep the Records for such period
as is required by the Laws, but in all cases for at least three years after the
expiration of the fiscal year to which they pertain. All financial Records shall be
open to inspection and audit by CRC (at its own expense) and their respective
employees and agents, at all reasonable times upon not less than five business
days' advance written notice during the period that the CFPA is obligated to keep
such Records. If there is any dispute with respect to the information disclosed by
the Records, then the CFPA shall keep the Records with respect to which such
dispute exists until the dispute is settled. The obligation of the CFPA to keep
Records shall survive the expiration of the Term or the earlier termination of this
Agreement.
(e) Additional Statements. The CFPA shall provide all donors and the
Internal Revenue Service will such statements, reports, forms, or other
documentation as is necessary for contributions made by donors to be deductible
charitable contributions for federal income tax purposes.
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(f) Use of Restricted Gifts. Donations or gifts received by CFPA that are
designated for a specific purpose shall be used for such purpose.
10. Mechanics' Liens. The CFPA shall not suffer or cause the filing of any mechanics' lien
against the Palladium. If any such mechanics' lien is filed for work claimed to have been done
for, or materials claimed to have been furnished to, the CFPA, then the CFPA shall: (a) cause
such mechanics' lien to be discharged of record within 90 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 (in an amount equal to at least 150% of the claimed lien) to CRC within
45 days after notice of the filing thereof. All liens suffered or caused by the CFPA shall attach
only to the interest of the CFPA. 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, the CFPA; or (b) as giving the CFPA 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 mechanics' lien to the interest of CRC.
11. Defaults and Remedies.
(a) Events of Default: Each of the following shall constitute an "Event of
Default":
(i) The failure by either party to perform or observe any term
or condition of this Agreement to be performed or observed by it:
(A) with respect to the obligation to pay money, if such failure is
not cured within ten business days after receipt of written notice
that such payment is due; and (B)with respect to any other
obligation, if such failure is not cured within the Cure Period;
(ii) An Incurable Financial Default; or
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• (iii) A Non-Profit Status Default.
(b) Remedies. If there is an.Event of Default, then, as its sole and exclusive
remedy, the non-defaulting party may: (i) cure, on behalf of the defaulting party,
the failure that is the basis of the Event of Default; or (ii) pursue an action for
specific performance or injunction; provided that, if: (i) there is an Incurable
Financial Default or a Non-Profit Status Default, CRC may terminate this
Agreement upon delivery of written notice to the CFPA within 30 days after the
date on which CRC becomes aware of the Incurable Financial.Default or the
Non-Profit Status Default, as applicable; or (ii) the CFPA engages in
misappropriation of the funds in the Palladium Endowment or the Operating
Accounts, then CRC may terminate this Agreement upon delivery of written
notice to the CFPA.
(c) Costs. If the non-defaulting party incurs any costs or expenses in
connection with exercising its rights under Subsection 11(b)(i), then the
defaulting party shall reimburse the non-defaulting party for all such costs and
expenses that are reasonable under the circumstances, together with interest at
the rate of 8% per annum. In the event of any action pursuant to Subsection
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11(b)(ii), the prevailing party shall be entitled to be awarded its reasonable
attorneys'fees and expenses incurred in connection with such action.
12. Casualty. If there is Casualty Damage, then the CFPA shall be responsible for repairing
such Casualty Damage; provided that: (a) if the cost to repair the Casualty Damage will exceed
$500,000.00, then the CFPA must obtain CRC's approval of the plans and specifications for
such repairs, which approval shall not be withheld unreasonably; and (b)the CFPA shall not be
obligated to incur costs for such repair in excess of the amount of the Insurance Proceeds
actually distributed to the CFPA after deducting the amount of any reasonable expenses
incurred in collecting the Insurance Proceeds. All Insurance Proceeds shall be distributed to the
CFPA by the City; provided that: (a) the CFPA shall use the Insurance Proceeds to repair the
Palladium; and (b) to the extent that any Insurance Proceeds remain after completion of such
repairs, the CFPA shall deposit the remaining Insurance Proceeds either into: (i) one or more of
the Operating Accounts;or(ii)the Palladium Endowment.
13. Indemnification.
(a) CFPA. The CFPA shall indemnify and hold harmless CRC from and
against any and all Claims arising from or connected with: (i) the actions of the
CFPA to satisfy its responsibilities under this Agreement; or (ii) a breach of this
Agreement by the CFPA.
(b) CRC. CRC shall indemnify and hold harmless the CFPA from and
against any and all Claims arising from or connected with: (i)the actions of CRC
to satisfy its responsibilities under this Agreement; (ii) a breach of this Agreement
by CRC; or (iii) any failure by the City to perform its obligations under the final
sentence of Subsection 4(c) or the final sentence of Section 12.
The foregoing indemnities shall survive the expiration of the Term or the earlier termination of
this Agreement.
14. Assignment. Neither the CFPA nor CRC shall assign any of its rights under this
Agreement without the prior written approval of the other party; provided that, without first
obtaining such written approval, CRC may assign its rights under this Agreement to CRA or
another department, agency, or instrumentality of the City.
15. Notice. Any notice required or permitted to be given by either party to this Agreement
shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the
other party; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national
overnight delivery service, with confirmation of receipt, addressed as follows: to CRC at 30 West
Main Street, Suite 220, Carmel, IN 46032, Facsimile: (317) 571-2789, Attn: President; and to
the CFPA at 355 W. City Center Drive, Carmel, Indiana 46032, Facsimile (317) 660-3374, Attn:
President. Either party may change its address for notice from time to time by delivering notice
to the other party as provided above.
16. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party
is delayed in, or prevented from, observing or performing any of its obligations under, or
satisfying any term or condition of, this Agreement as a result of: (a) an act or omission of the
other party; 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
12
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.
17. Authority. Each undersigned person executing this Agreement on behalf of CRC and
the CFPA represents and certifies that: (a) CRC or the CFPA, as applicable, has all requisite
power and authority to execute; deliver and perform its obligations under this Agreement
(including, in the case of CRC, the right to operate the Palladium and the right to assign such
rights to the CFPA as set forth herein), and this Agreement is enforceable against such party in
accordance with its terms, (b) he or she is empowered, and has been authorized by all
necessary action of CRC and the CFPA, respectively, to execute and deliver this Agreement;
and (c) the execution, delivery, and performance of this Agreement have been authorized by
CRC and the CFPA, respectively.
18: Miscellaneous. Subject to Section 14, this Agreement shall inure to the benefit of, and
be binding upon, CRC and the CFPA, and their respective successors and assigns. This
Agreement constitutes the entire agreement between CRC and the CFPA with respect to the
subject matter hereof, and may be modified only by a written agreement signed by both CRC
and the CFPA. 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. This Agreement may be executed in the
original or by telecopy or other electronic means 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. All Exhibits to this Agreement are attached hereto and incorporated herein by
reference.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON FOLLOWING PAGE]
13
IN WITNESS WHEREOF, CRC and the CFPA have executed this Agreement as of the
date set forth above.
CITY OF CARMEL REDEVELOPMENT
COMMISSION
By: II� •traddi./
• Printed: WI 1 •
Title: -QE. E
THE CENTER FOR THE PERFORMING
ARTS. I
Printed: 3-4 4,-. L,
Title: 62.F.,5,c -1/CC° �.
14
INDEX TO EXHIBITS
Exhibit A City Center Site (including delineation of Palladium Site and the Center
Green)
•
Exhibit B Insurance Requirements (Schedule of Palladium Insurance
Requirements)
Exhibit C Mission Statement
Exhibit D Local Performing Groups Entitled to Programming
Exhibit E City and CRC Private Boxes
•
•
•
15
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.1 43 August 21.09 Pr,levi .PNXSNN .. CSO Architects
•
•
EXHIBIT C
Mission Statement
Starting with the week-long Palladium grand opening in January 2011, the Center for the
Performing Arts is poised to become an inviting gathering place for the community, along with
The Tarkington theater and the Studio Theater and outdoor amphitheater. Combined, the four
venues will be a place for people to engage in communal intimacy, celebrating great art
together.
The Center will not only become a haven for local theater, dance and music
organizations to perform, it will also provide three of the finest stages in the world playing host to
the globe's most gifted performers. In each of the three venues, the Center will provide a
classical series featuring both domestic and international orchestras, recitals, vocalists and
chambers. In addition to world class performance groups, the Center will provide programming
opportunities for resident companies and other local arts organizations.
The creation of new art is a vibrant component of the Center's mission. The Center
intends to work with artists around the world to commission original symphonies, dance,theater,
jazz and chamber pieces. Likewise, the Studio Theater will become a venue for young artists
and those just beginning their careers. The Center also hopes to host new festivals celebrating
art alongside food and wine.
Equally important to the talents performing on stage is The Center's architecture. The
Center's success will be measured both by the works on stage and the inspiration found under
its magnificent classical Palladio dome. There is no other complex being built in North America
where so much attention has been paid to acoustics. The Palladium concert hall will stand 500
years or more, creating a legacy that will be passed along to our children and grandchildren for
generations to come.
•
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EXHIBIT D
Local Performing Groups Entitled to Programming
Actors Theatre of Indiana
Booth Tarkington Civic Theater
Carmel Repertory Theatre
Carmel Symphony Orchestra
Central Indiana Dance Ensemble
Gregory Hancock Dance Theatre
Indiana Wind Symphony
17