HomeMy WebLinkAboutPaperless Packet for BPW 06.15.22Board of Public Works and Safety Meeting
Agenda
Wednesday, June 15, 2022 – 10:00 a.m.
Council Chambers City Hall, One Civic Square
MEETING CALLED TO ORDER
1. MINUTES
a. Minutes from the June 1, 2022, Regular Meeting
2. BID/QUOTE OPENINGS AND AWARDS
a. Bid Opening for Project 22-STR-03 – Trailers; Lee Higginbotham, Street Commissioner
3. PERFORMANCE BOND RELEASE APPROVAL REQUEST
a. Resolution BPW 06-15-22-01; Delta Faucet; Right of Way; Shiel Sexton
4. CONTRACTS (A-J)
a. Request for Purchase of Goods and Services; Traliant Holdings, LLC; ($4,798.36);
Culture of Diversity Equity and Inclusion Program; TABLED; Chief Jeffrey Horner,
Carmel Police Department
b. Request for Purchase of Goods and Services; A & S General Construction, Inc.;
($6,752.56); Garage Painting - Carmel Data Center Project; Additional Services
Amendment; James Crider, Director of Administration
c. Request for Purchase of Goods and Services; Baker Tilly US, LLP; ($35,000.00);
Professional Services for Voluntary Carbon Offset Industry; James Brainard, Mayor
d. Request for Purchase of Goods and Services; Bayliss & Co., LLC; ($5,000.00);
Consulting for Public Art on Two Roundabouts on Main Street - Education Corridor;
Additional Services Amendment; James Brainard, Mayor
e. Request for Management Agreement; Blue Woods Creek Property Management; ($0);
Real Estate Management Agreement; John Duffy, Director of the Department of Utilities,
and Michael Klitzing, Director of Parks and Recreation
f. Request for Purchase of Goods and Services; Brennan Equipment Services Company;
($32,875.18); 301-7A Forklift; John Duffy, Director of the Department of Utilities
g. Request for Addendum to Sales Contract; Haas, Inc.; ($1,000.00); 90 day Pilot of Safety
Cloud Service; Chief David Haboush, Carmel Fire Department
h. Request for Purchase of Goods and Services; JAF Property Services, Inc.;
($116,640.00); Network Cabling Equipment and Drop - New Carmel Fire Department
Admin Building; Additional Services Amendment; Chief David Haboush, Carmel Fire
Department
i. Request for Management Agreement; Northern Beach Property Management; ($0);
Real Estate Management Agreement; John Duffy, Director of the Department of Utilities,
and Michael Klitzing, Director of Parks and Recreation
j. Request for Purchase of Goods and Services; Zayo Group, LLC; ($5,670.00); Internet
Service ($945.00 Monthly); Master Customer Agreement; Timothy Renick, Director of
Information and Communication Systems
5. REQUEST TO USE CITY STREETS/PROPERTY (A-I)
a. Request to Use Civic Square Gazebo; Wedding: May 20, 2023, 4:00 PM – 9:00 PM;
Rehearsal: May 19, 2023, 7:00 PM – 8:00 PM; John R. Arnold, Jr.
b. Request to Use Council Chambers; Carmel Green Initiative - Practice Session; June 16,
2022; 2:00 PM – 3:00 PM; Jim Grimes
c. Request to Use Midtown Plaza; Carmel Runners Club Fall Training Kickoff; July 9,
2022; 7:00 AM – 10:00 AM; Gabby Behr, Carmel Runners Club
d. Request to Use Civic Square Gazebo; Wedding - No Rehearsal: June 18, 2022; 11:00
AM – 12:30 PM; Meagan Crews
e. Request to Use / Close City Streets; Neighborhood Block Party on Florence Street; July
2, 2022; 12:00 PM – 10:00 PM; Eric Furry
f. Request to Use Japanese Garden; Wedding; September 3, 2022; 2:00 PM – 4:00 PM;
JoEllen Gatte
g. Request to Use Parking Spaces Near the Palladium; Two Sections of Bus Parking on
City Center Drive; June 23, 2022 at 6:00 AM – June 26, 2022 at 1:00 PM; Bill Greer
h. Request to Use Midtown Plaza / Parking Spaces; NBA Draft Viewing Party - Away
Game; June 23, 2021; 3:00 PM – 10:00 PM; Taylar Thomas, Indiana Pacers
i. Request to Acknowledge Mayor’s Approval to Use Midtown Plaza; Indy Eleven Watch
Party - Away Game; June 8, 2021; 5:00 PM – 11:00 PM; Joshua Mason
6. OTHER (A-G)
a. Request for Dedication and Deed of Public Rights–of-Way; Clay Township - 106th &
College RAB, Parcel 12; Jeremy Kashman, Director of the Department of Engineering
b. Request for Consent to Encroach and Variance; 849 Freeland Way; Duncan and Sally
Johnson, Homeowners
c. Request for Consent to Encroach and Variance; 6932 Pickett Place; Jessica and
Brandon Evans, Homeowners
d. Request for Open Pavement Cut / Lane Restriction; 96th and Haver Way; Retire Gas
Service Line; Citizens Energy
e. Request for Path Closure; 101 E. 116th Street; BSM Group
f. Request for Additional Curb Cut; 2017 Burning Tree Lane; Property Owners
g. Request for Open Pavement Cut / Lane Closures / Sidewalk Closures; Range Line
Road and Red Truck Road; Carmel Police Department Expansion Project; Connor
Britt, Envoy
7. ADJOURNMENT
Board of Public Works and Safety Meeting 1
Minutes 2
Wednesday, June 1, 2022 – 10:00 a.m. 3
Council Chambers City Hall, One Civic Square 4
5
MEETING CALLED TO ORDER 6 7
Mayor Brainard called the meeting to order at 10:00 AM 8
9
MEMBERS PRESENT 10
11
Mayor James Brainard, Board Members Lori Watson and Mary Ann Burke, and Deputy Clerk Holly Harmeyer 12
were present. 13
14
MINUTES 15
16
Minutes from the May 18, 2021 Regular Meeting. Board Member Burke moved to approve. Board Member 17
Watson seconded. Request approved 2-0. Mayor Brainard abstained. 18
19
BID/QUOTE OPENINGS AND AWARDS 20
21
Bid Award for Ditch Road Water Main Extension Project; John Duffy, Director of the Department of Utilities, 22
recommended awarding the bid to TPI Utility Construction, as they were the lowest and most responsive bidder. 23
Board Member Burke moved to award the bid to TPI Utility Construction in the amount of $912.990.00. Board 24
Member Watson seconded. Request approved 3-0. 25
26
Quote Award for Project 22-STR-01 - Keystone Crack Sealing; Crystal Edmondson, Department of Utilities, 27
recommended awarding the quote to Howard Asphalt, LLC. Howard Asphalt, LLC was the only quoter but was 28
also vetted to be a responsive quoter. Board Member Burke moved to award the bid to Cargill in the amount of 29
$108.50 Per Ton. Board Member Watson seconded. Request approved 3-0. 30
31
PERFORMANCE RELEASE/REDUCTION APPROVAL REQUESTS 32
33
Resolution BPW 06-01-22-04; Napleton Kia; Erosion Control; Board Member Burke moved to approve. Board 34
Member Watson seconded. Request approved 3-0. 35
36
Resolution BPW 06-01-22-05; GetGo - 146th and Gray; Right of Way; Board Member Burke moved to approve. 37
Board Member Watson seconded. Request approved 3-0. 38
39
Resolution BPW 06-01-22-06; Hadley Grove; Erosion Control; Board Member Burke moved to approve. Board 40
Member Watson seconded. Request approved 3-0. 41
42
CONTRACTS 43
44
Request for Purchase of Goods and Services; Kausal Oy; ($18,000.00); Climate Action Services; Addendum to 45
Service Agreement - ongoing; TABLED; Board Member Burke moved to remove the table. Board Member 46
Watson seconded. Removing from the table approved 3-0. Board Member Burke moved to approve. Mayor 47
Brainard seconded. Request approved 2-1 (Board Member Watson Opposed). 48
49
Request for Purchase of Goods and Services; Traliant Holdings, LLC; ($4,798.36); Culture of Diversity Equity 50
and Inclusion Program; TABLED; Chief Jeffrey Horner, Carmel Police Department; Item was tabled at the 51
previous meeting and have received no indication to remove it from the table. 52
53
Request for Purchase of Goods and Services; CrossRoad Engineers, P.C.; ($189,390.00); 20-ENG-13 - Veterans 54
Way - City Center to Walnut and Duke Energy Distribution Relocation Plans Preliminary Engineering; Board 55
Member Burke moved to approve. Mayor Brainard seconded. Request approved 3-0. 56
57
Request for Purchase of Goods and Services; Specialized Land Services, Inc.; ($2,075.00); 20-ENG-02 - Buying 58
Services - Parcel 10 - 106th and College RAB; Additional Services Amendment; Board Member Burke moved to 59
approve. Mayor Brainard seconded. Request approved 3-0. 60
61
Resolution BPW 06-01-22-01; A Resolution of the City of Carmel Board of Public Works and Safety 62
Acknowledging Agreement Between City and Vendor; DD Dannar, LLC; ($971,380.00); Dannar 480 3-Phase - 63
Dannar MPS 4.00 with 500kWh - Dannar MPS 4.00 with 375kWh; Board Member Burke moved to approve. 64
Mayor Brainard seconded. Request approved 3-0. 65
66
Resolution BPW 06-01-22-02; A Resolution of the City of Carmel Board of Public Works and Safety 67
Acknowledging Agreement Between City and Vendor; INDOT LPA; TIP Maximum Amount ($337,500.00); 68
Project Coordination Contract #62722, Des. No: 2200154; Board Member Burke moved to approve. Mayor 69
Brainard seconded. Request approved 3-0. 70
71
Resolution BPW 06-01-22-03; A Resolution of the City of Carmel Board of Public Works and Safety 72
Acknowledging Agreement Between City and Vendor; INDOT LPA; TIP Maximum Amount ($319,500.00); 73
Project Coordination Contract #62641 Des. No: 2200152; Board Member Burke moved to approve. Mayor 74
Brainard seconded. Request approved 3-0. 75
76
Request for Purchase of Goods and Services; Gridlock Traffic Systems, Inc.; ($102,500.60); Striping; Additional 77
Services Amendment #2; Board Member Burke moved to approve. Mayor Brainard seconded. Request approved 78
3-0. 79
80
Request for Purchase of Goods and Services; StreetScan, Inc.; ($68,542.00) per annum; Pavement Scanning and 81
Software; Board Member Burke moved to approve. Mayor Brainard seconded. Request approved 3-0. 82
83
Request for Purchase of Goods and Services; RTS Water Solutions, LLC; ($69,875.98); Water Meter 84
Replacement; CO #1; Board Member Burke moved to approve. Mayor Brainard seconded. Request approved 85
3-0. 86
87
Request for Agreement Between Owner and Contractor; TPI Utility Construction, LLC; ($912,990.00); Ditch 88
Road Water Main Extension Project; Board Member Burke moved to approve. Mayor Brainard seconded. 89
Request approved 3-0. 90
91
Request for Purchase of Goods and Services; Gordon Flesch Company, Inc.; ($2,965.20) per annum; B&C 92
Copier - Model IR ADV DX C3835i - 48 Month Lease; Additional Services Amendment; Board Member Burke 93
moved to approve. Mayor Brainard seconded. Request approved 3-0. 94
95
Request for Purchase of Goods and Services; Tandem Mobility, LLC; ($90,000.00); Renewal Term May 6, 20022 96
- May 5, 2023; Amendment No. 1 to Master Services Agreement; Board Member Burke moved to approve. Mayor 97
Brainard seconded. Request approved 3-0. 98
99
Request for Purchase of Goods and Services; Municipal Emergency Services, Inc.; ($30,383.79); Ballistic Vests 100
and Helmets; Additional Services Amendment; Board Member Burke moved to approve. Mayor Brainard 101
seconded. Request approved 3-0. 102
103
Request for Purchase of Goods and Services; Stryker Sales, LLC; ($27,360.00); LifePak 15 Preventative 104
Maintenance; Additional Services Amendment; Board Member Burke moved to approve. Mayor Brainard 105
seconded. Request approved 3-0. 106
107
Request for Purchase of Goods and Services; Maxwell Lightning Protection Company; ($9,250.00); Carmel Data 108
Center - Lightning Protection; Board Member Burke moved to approve. Mayor Brainard seconded. Request 109
approved 3-0. 110
111
REQUEST TO USE CITY STREETS/PROPERTY 112
113
Request to Use Midtown Plaza and Parking Spaces; Community Blood Drive with Bloodmobile - Allied Solution 114
and Versiti Blood Center of Indiana; June 16, 2022; 7:00 AM – 3:00 PM; Board Member Burke moved to 115
approve, as all have been vetted by City staff. Board Member Watson seconded. Request approved 3-0. 116
117
Request to Use Midtown Plaza; Book Giveaway -in Conjunction with Movies at Midtown; June 16, 2022; 4:30 118
PM – 8:30 PM; Board Member Burke moved to approve, as all have been vetted by City staff. Board Member 119
Watson seconded. Request approved 3-0. 120
121
Request to Amend CarmelFest Use Request; Originally Approved on April 20, 2022; Adding a No Parking Zone 122
Request to Accommodate Parade Traffic on 1st Ave NE and 2nd ST NE; July 4, 2022; 8:00 AM – 2:00 PM; Board 123
Member Burke moved to approve, as all have been vetted by City staff. Board Member Watson seconded. Request 124
approved 3-0. 125
126
Request to Use Base of the South Palladium Steps and Street Closure of Carter Green Loop; Center Celebration 127
2022 - Presented by Krieg DeVault; September 16, 2022; 9:00 AM – 11:00 PM; Tent: September 15 - September 128
19, 2022; Board Member Burke moved to approve, as all have been vetted by City staff. Board Member Watson 129
seconded. Request approved 3-0. 130
131
Request to Use Mobile Stage; Indy GreekFest - Holy Trinity Greek Orthodox Cathedral Parking Lot Greenspace; 132
August 26, 2022 at 8:00 AM – August 27, 2022 at 11:00 PM; Board Member Burke moved to approve, as all have 133
been vetted by City staff. Board Member Watson seconded. Request approved 3-0. 134
135
Request to Use Civic Square Gazebo; Family Summer Concert Series at the Gazebo; Wednesday Evenings June 136
1, 2022 - September 28, 2022; 12:00 PM – 10:00 PM; Board Member Burke moved to approve, as all have been 137
vetted by City staff. Board Member Watson seconded. Request approved 3-0. 138
139
Request to Acknowledge Use of Midtown Plaza; Midtown Anniversary Celebration; May 27, 2022; 3:00 PM – 140
8:00 PM; Board Member Burke moved to acknowledge usage. Board Member Watson seconded. 141
Acknowledgment approved 3-0. 142
143
144
OTHER 145
146
Request for Consent to Encroach and Variance; 4958 St. Charles Place; Board Member Burke moved to 147
approve with contingency any conditions being met by the City’s Engineering Department. Mayor Brainard 148
seconded. Request approved 3-0. 149
150
Request for Consent to Encroach and Variance; 13062 Thurmond Way; Board Member Burke moved to 151
approve with contingency any conditions being met by the City’s Engineering Department. Mayor Brainard 152
seconded. Request approved 3-0. 153
154
Request for Road Closure / Sidewalk Closure / Open Pavement Cut; 275 Veterans Way; F.A. Wilhelm 155
Request for Small Cell Permit; Permit #SC-2022-00003; Two Locations - 1858 W 106th Street Cluster 12 Node 156
23 and 1176 W Main Street Cluster 12 Node 28; Board Member Burke moved to approve with contingency any 157
conditions being met by the City’s Engineering Department. Mayor Brainard seconded. Request approved 3-0. 158
159
Request for Small Cell Permit; Permit #SC-2022-00004; 4797 E 106th Street Cluster 16 Node 01; Board 160
Member Burke moved to approve with contingency any conditions being met by the City’s Engineering 161
Department. Mayor Brainard seconded. Request approved 3-0. 162
163
ADD-ONS 164
165
Resolution BPW 06-01-22-07; A Resolution of the City of Carmel Board of Public Works and Safety 166
Acknowledging Agreement Between City and Vendor; PRIF Agreement, 1st on Main. Board Member Burke 167
moved to add item 7A to the agenda. Board Member Watson seconded. Add-on of 7A approved 3-0. Sergey 168
Grechukhin, Office of Corporation Counsel, presented the item. There was no further discussion. Board Member 169
Burke moved to approve. Board Member Watson seconded. Add-on approved 3-0. 170
171
Quote Reading and Award; Data Center - Additional Storage Room Work. Board Member Burke moved to add 172
item 7B to the agenda. Board Member Watson seconded. Add-on of 7B approved 3-0. Sergey Grechukhin, 173
Office of Corporation Counsel explained the quote. One quote was received from three that were solicited via 174
email. A & S General Construction quote in the amount of $7,309.00 has been vetted for responsiveness. Board 175
Member Burke moved to approve. Board Member Watson seconded. Add-on approved 3-0 176
177
OTHER BUSINESS 178
179
Keith Bayless, Silverthorne Homes, was recognized to speak before the Board. He wished to expedite a request 180
for a street closure for a sewer tap. Caleb Warner, City of Carmel Engineering Department, was present and 181
offered to assist Bayless in navigating the request process after the meeting was adjourned. 182
183
ADJOURNMENT 184
185
Mayor Brainard adjourned the meeting at 10:13 a.m. 186
187
188
APPROVED: ____________________________________ 189
Sue Wolfgang – City Clerk 190
191
_____________________________________ 192
Mayor James Brainard 193
ATTEST: 194
195
__________________________________ 196
Sue Wolfgang – City Clerk 197
CzTfshfzHsfdivlijobu21;12bn-Bqs39-3133
TRALIANTHOLDINGS, LLCANDCARMELPOLICEDEPARTMENT - CONFIDENTIAL ANDPROPRIETARY
Building aCulture of Diversity Equity and Inclusion Suite:
Diversity, Inclusion & Sensitivity
Unconscious Bias
Microaggressions in the Workplace
Cultural Competency & Humility
Religion, Spirituality & Beliefs
An Intergenerational Workforce: The Blender
Being an Ally: A Tough Transition
Diversity and Inclusion: The Table
Microaggressions: Mindful Speaking
Pronouns: AMatter of Respect
Unconscious Bias - Superstar Search
Avoiding Personal Choice Bias - Superhero
Cliques
c) Customer shall pay by check or electronic funds transfer within thirty (30) days of receiving each Traliant invoice. If
Customer utilizes apayment system or method requiring Traliant to pay afee to use and to receive payment from Customer,
Traliant will addthat associated fee amount to Customer'sinvoices. Customer shall pay alate fee of one percent (1%) per
month, or the highest rate allowed under the law, whichever islower, on any overdue amounts.
3. Implementation Package
a) Basic Implementation Package. Traliant shall assist Customer with the following services listed below (the
Implementation Services") for the initial rollout of Programs:
i) the importing of employee data;
ii) importing acompany logo;
iii) attachment ofpolicy and/or link topolicy (where applicable);
iv) customize certificate with client’slogo and client-supplied signature;
v) HRIS Integration
vi) Single Sign-On (SSO) Integration
vii) SMS Text Message Integration; and
viii) customization of assignment and reminder messages, including calendar integration.
Traliant shall invoice Customer on the Effective Date of this Agreement the amount of $995.00 ("Implementation Fees") for
these Implementation Services.
4. Warranty; Disclaimer
a) Warranty. Traliant warrants that any Implementation Services shall be rendered in aprofessional manner by personnel
familiar with the Programs and training-management software. Traliant'sexclusive obligation, and Customer'ssoleremedy, for
breach of these warranties shall be (i) to re-perform the Implementation Services at noadditional charge, and (ii) at Traliant's
option, to repair or replace any such non-conforming Programs or to refund the fees paid by Customer for such non-conforming
Programs and/or Implementation Services. Any replacement Programs shall notextend the warranty.
These warranties shall not apply ifthe Programs are: (i) modified oraltered inany way (other than by Traliant or with the
specific prior written consent ofTraliant); (ii) notupdated with the corrections, patches, fixes, updates, improvements or
enhancements that Traliant may make available from time to time; (iii) used in anymanner or forany purpose not specifically
permitted by this Agreement or the documentation.
2
TRALIANTHOLDINGS, LLCANDCARMELPOLICEDEPARTMENT - CONFIDENTIAL ANDPROPRIETARY
b) Disclaimer. EXCEPT AS SET FORTH ABOVE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW,
TRALIANT DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, ORAL OR WRITTEN, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF THE TRADE.
c) NO LEGAL ADVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROGRAMS ARE
PROVIDED FOR EDUCATIONAL PURPOSES ONLY AND MAY NOT BE RELIED UPON AS LEGAL ADVICE AND
THAT TRALIANT SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY OTHER PERSON RELATING TO OR
RESULTING FROM THE USE OF THE PROGRAMS AND THE INFORMATION INCLUDED THEREIN, OR ANY
ERRORS IN OROMISSIONS THEREFROM. TRALIANT SHALL NOT BE LIABLE IN RESPECT OF ANY DECISIONS
MADE BY CUSTOMER AS ARESULT OF THE PERFORMANCE BY TRALIANT OF ITS SERVICES HEREUNDER OR
IN CONNECTION WITH SERVICES OFFERED.
5. Limitation of Liability
INNO EVENT SHALL (A) TRALIANT BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR
INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, EVEN IF TRALIANT WAS
AWARE OFTHE POSSIBILITY OF SUCH DAMAGES; AND (B) TRALIANT'STOTAL LIABILITY FOR ANY LOSS
ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BYCUSTOMER FOR THE PROGRAMS OR
SERVICES GIVING RISE TO THE CLAIM.
6. Indemnification
Traliant shall indemnify, defend and hold harmless Customer, its affiliates and their respective partners, officers, employees
and agents from and against any losses or threatened losses arising out of or relating to any infringement, misappropriation or
violation ofany patent, copyright, trade secret or other intellectual property right asserted by any third person against Customer,
its affiliates orany other person in connection with the provision, use orpossession of any of the Programs.
7. General
a) Term. The Term of this Agreement is 2-year(s) from the Effective Date. The Term ofthis Agreement will
automatically renew for an additional 2-year period at a5% increase unless cancelled by either Party by providing ninety
90) days' written notice to the other Party. Either Party may terminate this Agreement upon written notice ifthe other Party
breaches any material provision and fails to cure such breach within thirty (30) days' written notice thereof. Upon termination
or expiration of this Agreement, all licenses granted herein shall terminate, and each Party shall return the other Party's
confidential information.
b) Taxes. Customer shall be responsible forall applicable sales, use, value added or similar taxes, ifany, payable with
respect tothe Services provided under this Agreement or arising out of or inconnection with this Agreement whether atthe time
of invoicing or later determined by ataxing jurisdiction, provided that Traliant shall be responsible for all taxes imposed on
Traliant'snet income or gross receipts, for any personal property taxes on property it owns or leases, and forfranchise and
privilege taxes on its business. The Parties agree to cooperate with each other to enable each to more accurately determine its
own tax liability and to minimize such liability to the extent legally permissible. Traliant's invoices will separately state the
amount ofany taxes Traliant iscollecting from Customer. Customer will beentitled to any tax refunds or rebates granted to the
extent such refunds or rebates areof taxes paid by Customer. IfCustomer istax exempt, Customer shall provide Traliant with
proof of exemption status by emailing Accounting@Traliant.com.
c) Confidentiality. Each Party shall not disclose to any third party or use for any purpose not expressly permitted under
this Agreement the confidential information provided bythe other Party, provided that such confidential information isdisclosed
in written form with awritten indication of confidentiality.
d) Proprietary Rights. Customer acknowledges that Traliant owns all right, title and interest in and to the Programs and
content provided under this Agreement.
e) Severability. Ifany provision hereof isheld to be invalid, illegal or unenforceable, in whole or in part, theremaining
provisions of this Agreement shall remain binding and enforceable by and between the Parties.
f) Law and Disputes. This Agreement shall be governed by the laws ofthe State of California, without giving effect to
any conflict of law principle that would provide for the application of the law of adifferent jurisdiction. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Ifany dispute between Customer
3
TRALIANTHOLDINGS, LLCANDCARMELPOLICEDEPARTMENT - CONFIDENTIAL ANDPROPRIETARY
and Traliant arising out of orin connection with this Agreement cannot be resolved by the Parties or through mediation, then the
Parties shall be free topursue any right or remedy available to them under applicable law. In the event that either Party
commences any action or proceeding under this Agreement to enforce anyright or remedy hereunder, the prevailing Party (as
determined by the trier of facts) shall be entitled torecover its reasonable costs and attorneys' fees.
g) Notices. All notices required or permitted hereunder shall be inwriting at theaddress specified in thisAgreement by
the Parties and tothe attention of the person signing this Agreement viacertified mail, return receipt requested, overnight delivery
by a nationally recognized carrier or by email upon confirmation receipt.
h) Assignment. Neither Party shall assign, sub license, rent, lease or otherwise transfer its rights, duties or obligations
under this Agreement toany person or entity without the prior written consent of the other Party. Notwithstanding the foregoing,
either Party mayassign this Agreement in its entirety, without consent of the other Party, in connection with amerger, acquisition,
corporate reorganization, or sale of all orsubstantially all ofits assets not involving adirect competitor of the other Party. Any
attempted assignment in violation of this section shall be void.
i) Publicity. Traliant may announce Customer'sselection of Traliant on itswebsite, in marketing materials and in apress
release. Customer grants Traliant permission to use their logo for these activities.
j) Entire Agreement. This Agreement supersedes allprior proposals, negotiations, representations, agreements and
understandings between the Parties, including those contained in any confidentiality agreements, and all terms and conditions
contained inany Customer-provided purchase orders, and constitutes the complete and exclusive agreement between Customer
and Traliant regarding the subject matter hereof, and the Customer acknowledges that ithasnot relied on any statement, promise
or representation made orgiven by oron behalf of Traliant which is not set out in this Agreement. Any reference to apurchase
order orsimilar documentation onan invoice or other acceptance thereof issolely for Customer'sconvenience in record keeping,
and nosuch reference orthe provision of Services to Customer shall be deemed an acknowledgement of or agreement in any
terms orconditions associated with any such purchase order or other Customer-provided documentation. This Agreement shall
not bemodified oramended except by express written agreement between the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as ofthe Effective Date.
TRALIANT HOLDINGS, LLC CARMEL POLICE DEPARTMENT
Signature: __________________________________ Signature: __________________________________
Printed Name: ______________________________ Printed Name: _______________________________
Title: _____________________________________ Title: ______________________________________
Date: Date:
thNOTE: Agreement Terms and Discounted Pricing Expires: May 13, 2022.
4
Approved and Adopted this day of , 20 .
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
James Brainard, Presiding Officer
Date:
Mary Ann Burke, Member
Date:
Lori S. Watson, Member
Date:
ATTEST:
Sue Wolfgang, Clerk
Date:
4th May 22
CzTfshfzHsfdivlijobu3;12qn-Kvo12-3133
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
CzKpoPcfsmboefsbu4;39qn-Kvo17-3133AGREEMENTFORPROFESSIONALSERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES (“Agreement”) ishereby made and entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (hereinafter
City"), and Baker Tilly US, LLP(hereinafter "Professional").
RECITALS
WHEREAS, theCity owns and is responsible for the operation and maintenance of its property, personnel,
public works and infrastructure; and
WHEREAS, from time to time, City needs professional assistance in fulfilling itsforegoing responsibilities;
and
WHEREAS, Professional is experienced in providing and desires to provide to City the professional services
Services”) referenced herein; and
WHEREAS, City desires to engage Professional as an independent contractor for the purpose of providing to
City the Services referenced herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth
herein, City and Professional mutually agree as follows:
SECTION 1 INCORPORATION OF RECITALS
The foregoing Recitals are hereby incorporated into this Agreement and made apart hereof.
SECTION 2SCOPE OF SERVICES
2.1City desires to engage Professional as an independent contractorto provide PhasesI andII of the
Services, as set forth in attached ExhibitA, incorporated herein bythis reference.
2.2Professional understandsand agrees that City may, from time to time, request Professional to provide
additional or modified Services to City. When City desires additional Services from Professional, the City
shall notify Professional of such additional Services desired, as well as the time frame in which same are to
be provided. Only after City has approved Professional’s time and cost estimate for the provision of such
additional Services, has encumbered sufficient monies to pay for same, and has authorized Professional, in
writing, to provide such additional Services, shall such Services be provided by Professional to City. A copy
of the City’s authorization documents for the purchase of additional Services shall be numbered and attached
hereto in the order in which they are approved by City.
2.3Time is of the essence of this Agreement.
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
1
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
SECTION 3 CITY'S RESPONSIBILITIES
3.1City shall provide such information as is reasonably necessary for Professional to understand the Services
requested.
3.2City shall provide all data required for provision of Services. Professional may assume that all data so
provided is correct and complete.
3. City shall arrange for Professional to enter upon public and private property as reasonably required for3.
Professional to perform the Services.
3.4City shall designate payment of the Services from City budget appropriation number 1160 4341999 funds.
3.5City shall designate the Mayor or his duly authorized representative to act on City’s behalf on all matters
regarding the Services.
SECTION 4 PROFESSIONAL'S RESPONSIBILITIES
4.1Professional shall perform the Services pursuant to the terms of this Agreement and within any applicable
time and cost estimate.
4.2Professional shall coordinate with City its performance of the Services.
4.3Professional shall provide the Services by following and applying at all times reasonable and lawful
standards as accepted in the industry.
SECTION 5 COMPENSATION
5.1Professional estimates that the total price for Phases I and II of the Services shall be no more than Thirty
Five Thousand Dollars ($35,000.00), billed at the rates set forth in Exhibit A (the “Estimate”).
Professional shall be reimbursed for reasonable expenses as set forth in Exhibit A. Professional shall
submit an invoice to City no more than once every thirty (30) days for Services provided City during the time
period encompassed by such invoice. Invoices shall be submitted on a form containing the same
information as that contained on the Professional Services Invoice attached hereto as Exhibit B,
incorporated herein by this reference. City shall pay Professional for all undisputed Services rendered
and stated on such invoice within thirty five (35) days from the date of City’s receipt of same.
5.2Professional agrees not to provide any Services to City that would cause the total cost of same to exceed the
Estimate, without City’s prior written consent.
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
2
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
SECTION 6 TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Section 7.1
hereinbelow, this Agreement shall be in effect from the Effective Date through December 31, 2022, and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
SECTION 7 MISCELLANEOUS
7.1 Termination
7.1.1The obligation to provide all or any portion of the Services under this Agreement may be terminated
by City or Professional, without cause, upon thirty (30) days’ notice.
7.1.2 The obligation to provide all or any portion of the Services under this Agreement may be terminated
by City, for cause, immediately upon Professional’s receipt of City’s “Notice to Cease Services.”
7.1.3 In the event of full or partial Agreement termination, and as full and complete compensation
hereunder, Professional shall be paid for all such Services rendered and expenses incurred as of
the date of termination that are not in dispute, except that such payment amount shall not exceed
the Estimate. Disputed compensation amounts shall be resolved as allowed by law.
7.2 Binding Effect
City and Professional, and their respective officers, officials, agents, partners and successors in interest are
bound to the other as to all Agreement terms, conditions and obligations.
7.3 No Third Party Beneficiaries
Nothing contained herein shall be construed to give rights or benefits to anyone other than the parties
hereto.
7.4 Relationship
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Professional nor
any of its agents, employees or contractors are City employees. Professional shall have the sole
responsibility to pay to or for its agents, employees and contractors all statutory, contractual and other
benefits and/or obligations as they become due. Professional hereby warrants and indemnifies City for and
from any and all costs, fees, expenses and/or damages incurred by City as aresult of any claim for wages,
benefits or otherwise by any agent, employee or contractor of Professional regarding or related to the subject
matter of this Agreement. This indemnification obligation shall survive the termination of this Agreement.
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3
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
7.5 Insurance
7.5.1Professional shall, as a condition precedent to this Agreement, purchase and thereafter maintain
such insurance as will protect it and City from the claims set forth below which may arise out of or result from
Professional's operations under this Agreement, whether such operations be by Professional or by its
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone directly for whose
acts any of them may be liable:
1) Claims under Worker's Compensation and Occupational Disease Acts, and any other
employee benefits acts applicable to the performance of the work;
2) Claims for damages because of bodily injury and personal injury, including death, and;
3) Claims for damages to property.
Professional'sinsurance shall be not less than the amounts shown below:
A. Commercial General Liability (Occurrence Basis)
Bodily Injury, personal injury, property damage,
Contractual liability, product/completed operations
Each Occurrence Limit $1,000,000.00
Damage to Rented Premises $100,000.00
each
occurrence)
Medical Expense Limit $5,000.00
Personal and Advertising Injury Limit $500,000.00
General Aggregate Limit $2,000,000.00 (Other
than Products Completed
Operations)
NOTE: GENERAL AGGREGATE TO APPLY PER PROJECT
Products/Completed Operations $1,000,000.00
B. Auto Liability $1,000,000.00 (combined
single limit) (owned, hired & non-owned)
Bodily injury & property damage $1,000,000.00
each accident
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
4
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
C. Excess/Umbrella Liability $2,000,000 (each occurrence
and aggregate)
D. Worker's Compensation & Disability Statutory
E. Employer’s Liability:
Bodily Injury by Accident/Disease: $100,000 each employee
Bodily Injury by Accident/Disease: $250,000 each accident
Bodily Injury by Accident/Disease: $500,000 policy limit
F. Professional Liability Insurance. The Professional shall carry and maintain during
the continuance of this Agreement, professional liability insurance in the amount of
2,000,000 for single limit claims and $3,000,000 in the aggregate. The
Professional's policy of insurance shall contain prior acts coverage sufficient to
cover all Services performed by the Professional for this Project. Upon City's
request, Professional shall give prompt written notice to City of any and all claims
made against this policy during the period in which this policy is required to be
maintained pursuant to this Agreement. If the insurance is written on a claims-made
basis and coverage is cancelled at any time, the Professional will obtain, at its cost,
an extended reporting endorsement which provides continuing coverage for claims
based upon alleged acts or omissions during the term of the Agreement until all
applicable statute of limitation periods have expired.
7.5.2 Professional shall provide the City with a certificate of insurance, naming the City as an
additional insured," showing such coverage then in force (but not less than the amount shown
above) shall be filed with City prior to commencement of any work. These certificates shall contain a
provision that the policies and the coverage afforded will not be canceled until at least thirty (30)
days after written notice has been given to City.
7.5.3 Professional may, with the prior approval of the City, substitute different types of coverage for
those specified if the total amount of required protection is not reduced. Professional shall be
responsible for all deductibles.
7.5.4 Nothing in the above provisions shall operate as or be construed as limiting theamount of
liability of Professional to the above enumerated amounts.
7.6 Liens
Professional shall not cause or permit the filing of any lien on any of City’s property. In the event such a lien
is filed and Professional fails to remove itwithin ten (10) days after the date of filing, City shall have the right
to pay or bond over such lien at Professional’s sole cost and expense.
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5
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
7.7 Default
In the event Professional: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Professional’s warranties; (b) fails to perform the Services as specified; (c) fails to
make progress so as to endanger timely and proper completion of the Services and does not correct such
failure or breach within five (5) business days after receipt of notice from City specifying same; or (d)
becomes insolvent, files, or has filed against it, apetition for receivership, makes a general assignment for
the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall
have the right to terminate all or any part of this Agreement, without liability to Professional and to exercise
any other rights or remedies available to it at law or in equity.
7.8 Government Compliance
Professional agrees to comply with all laws, executive orders, rules and regulations applicable to
Professional’s performance of its obligations under this Agreement, all relevant provisions of which being
hereby incorporated herein by this reference, to keep all of Professionals’ required professional licenses and
certifications valid and current, and to indemnify and hold harmless City from any and all losses, damages,
costs, liabilities, damages, costs and attorney fees resulting from any failure by Professional to do so. This
indemnification obligation shall survive the termination of this Agreement.
7.9 Indemnification
Professional shall indemnify and hold harmless City and its officers, officials, employees and agents from all
losses, liabilities, claims, judgments and liens, including, but not limited to, all damages, costs, expenses and
attorney fees arising out of any intentional or negligent act or omission of Professional and/or any of its
employees, agents or contractors in the performance of this Agreement. This indemnification obligation shall
survive the termination of this Agreement.
7.10 Discrimination Prohibition
Professional represents and warrants that it and each of its employees, agents and contractors shall comply
with all existing and future laws prohibiting discrimination against any employee, applicant for employment
and/or other person in the subcontracting of work and/or in the performance of any Services contemplated by
this Agreement with respect to hire, tenure, terms, conditions or privilegesof employment or any matter
directly or indirectly related to employment, subcontracting or work performance hereunder because of race,
religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran
status. This indemnification obligation shall survive the termination of this Agreement.
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
6
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
7.11 E-Verify
Pursuant to I.C. § 22-5-1.7 et seq., Professional shall enroll in and verify the work eligibility status of all of its
newly-hired employees using the E-Verify program, ifit has not already done so as of the date of this
Agreement. Professional is further required to execute the attached Affidavit, herein referred to as Exhibit C,
which is an Affidavit affirming that: (i) Professionalis enrolled and is participating in the E-verify program, and
ii) Professionaldoes not knowingly employ any unauthorized aliens. This Addendum incorporates by
reference, and in its entirety, attached Exhibit C. In support of the Affidavit, Professional shall provide the City
with documentation that ithas enrolled and is participating in the E-Verify program. This Agreement shall not
take effect until said Affidavit is signed by Professional and delivered to the City’sauthorized representative.
Should Professional subcontractfor the performance of any work under this Addendum, the
Professional shall require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not
knowingly employ or contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is
participating in the E-verify program. Professional shall maintain a copy of such certification for the duration
of the term of any subcontract. Professional shall also deliver acopy of the certification to the City within
seven (7) days of the effective date of the subcontract.
If Professional, or any subcontractor of Professional, knowingly employs or contracts with any
unauthorized aliens, or retains an employee or contract with aperson that the Professional or subcontractor
subsequently learns is an unauthorized alien, Professional shall terminate the employment of or contract with
the unauthorized alien within thirty (30) days (“Cure Period”). Should the Professional or any subcontractor of
Professional fail to cure within the Cure Period, the City has the right to terminate this Agreement without
consequence.
The E-Verify requirements of this Agreement will not apply, should the E-Verify program cease to exist.
7.12 Severability
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent
jurisdiction, that provision shall be stricken, and all other provisions of this Agreement that can operate
independently of same shall continue in full force and effect.
7.13 Notice
Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to this Agreement
shall be written and either hand-delivered or sent by prepaid U.S. certified mail, return receipt requested,
addressed to the parties as follows:
CITY:
City of Carmel
Mayor’s OfficeOffice of Corporation Counsel
One Civic Square One Civic Square
Carmel, Indiana 46032Carmel, Indiana 46032
ATTENTION: Mayor James Brainard Attn: Jon Oberlander
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7
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
PROFESSIONAL:
Baker Tilly US, LLP
Energy & Infrastructure Group
1650 Market Street, Suite 4500
Philadelphia, PA 19103
ATTENTION:Gideon Gradman
Notwithstanding the above, City may orally provide to Professional any notice required or permitted by this
Agreement, provided that such notice shall also then be sent as required by this paragraph within ten (10)
business days from the date of such oral notice.
7.14 Effective Date
The effective date (“Effective Date”) of this Agreement shall be the date on which the last of the parties
hereto executes same.
7.15 Governing Law; Lawsuits
This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana,
except for its conflict of laws provisions, as well as by all ordinances and codes of the City of Carmel,
Indiana. The parties agree that, in the event a lawsuit is filed hereunder, they waive any right to a jury trial
they may have, agree to file such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree
that such court is the appropriate venue for and has jurisdiction over same.
7.16 Waiver
Any delay or inaction on the part of either party in exercising or pursuing its rights and/or remedies hereunder
or under law shall not operate to waive any such rights and/or remedies nor in any way affect the rights of
such party to require such performance at any time thereafter.
7.17 Non-Assignment
Professional shall not assign or pledge this Agreement nor delegate its obligations hereunder without City’s
prior written consent.
7.18 Entire Agreement
This Agreement contains the entire agreement of and between the parties hereto with respect to the subject
matter hereof, and no prior agreement, understanding or representation pertaining to such subject matter,
written or oral, shall be effective for any purpose. No provision of this Agreement may be amended, added to
or subtracted from except by an agreement in writing signed by both parties hereto and/or their respective
successors in interest. To the extent any provision contained in this Agreement conflicts with any provision
contained in any exhibit attached hereto, the provision contained in this Agreement shall prevail.
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8
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
7.19 Representation and Warranties
Each party hereto represents and warrants that it is authorized to enter into this Agreement and that any
person or entity executing this Agreement on behalf of such party has the authority to bind such party or the
party which they represent, as the case may be.
7.20Headings
All headings and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
7.21 Advice of Counsel
The parties warrant that they have read this Agreement and fully understand it, have had an opportunity to
obtain the advice and assistance of counsel throughout the negotiation of same, and enter into same freely,
voluntarily, and without any duress, undue influence or coercion.
7.22 Copyright
City acknowledges that various materials which may be used and/or generated by Professional in
performance of Services, including forms, job description formats, comprehensive position questionnaire,
compensation and classification plan and reports are copyrighted. City agrees that all ownership rights and
copyrights thereto lie with Professional, and City will use them solely for and on behalf of its own operations.
City agrees that it will take appropriate action with its employees to satisfy its obligations with respect to use,
copying, protection and security of Professional’s property.
7.23 Personnel
Professional represents that ithas, or will secure at its own expense, all personnel required in performing the
services under this agreement. Such personnel shall not be employees of or have any contractual
relationship with City. All of the services required hereunder will be performed by Professional or under his
supervision and all personnel engaged in the work shall be fully qualified to perform such services.
7.24Records and Inspections
Professional shall maintain full and accurate records with respect to all matters covered under this
agreement for three (3) years after the expiration or early termination of this Agreement. City shall have free
access at all proper times to such records and the right to examine and audit the same and to make
transcripts there from, and to inspect all program data, documents, proceedings and activities.
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
9
BakerTillyUS, LLP
Mayor’sOffice - 2022
Appropriation #11604341999; P.O.#106552
ContractNotToExceed $35,000.00
7.25Accomplishment of Project
Professional shall commence, carry on, and complete the project with all practicable dispatch, in a sound
economical and efficient manner, in accordance with the provisions thereof and all applicable laws. In
accomplishing the project, Professional shall take such steps as are appropriate to ensure that the work
involved is properly coordinated with related work being carried on within City’s organization.
7.26 Debarment And Suspension
7.26.1 The Professional certifies by entering into this Agreement that neither it nor its principals nor any of
its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or
voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency
or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an
officer, director, owner, partner, key employee or other person with primary management or supervisory
responsibilities, or a person who has a critical influence on or substantive control over the operations of the
Professional.
7.26.2 The Professional certifies that ithas verified the state and federal suspension and debarment status
for all subcontractors receiving funds under this Agreement and shall be solely responsible for any
recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The
Professional shall immediately notify the City if any subcontractor becomes debarred or suspended, and
shall, at the City’s request, take all steps required by the City to terminate its contractual relationship with the
subcontractor for work to be performed under this Agreement.
7.27 Access to Public Records Act
Professional understands and agrees that any “public record”, as that term is defined in Indiana Code 5-14-3-
2(m), as amended, that is related to the subject matter of this Agreement, whether the same is in the
possession or control of the Professional or the City, shall be subject to release under and pursuant to the
provisions of Indiana’s Access to Public Records Act, as codified in Indiana Code 5-14-3-1, etseq., as
amended.
7.28Iran Certification
Pursuant to I.C. § 5-22-16.5, the Professional shall certify that, in signing this Agreement, it does not engage
in investment activities within the Country of Iran.
S:\\joberlander\\Contracts\\Baker Tilly Capital LLC Voluntary Carbon Offset Markets Professional Services Agreement Revised 5.26.22.doc:5/26/2022 10:01 AM\]
10
BakerTillyUS, LLP
Mayor’sOffice-2022
Appropriation#11604341999;P.O.#106552
ContractNotToExceed$35,000.00
INWITNESSWHEREOF, thepartiesheretohavemadeandexecutedthis Agreementas follows:
CITY OFCARMEL,INDIANABAKERTILLYUS,LLP
byandthroughitsBoardofPublic
WorksandSafety
BY: BY:
JamesBrainard, PresidingOfficerAuthorizedSignature
Date: Todd CarpenterPrintedName:
Partner, CPATitle:
MaryAnnBurke,Member June 6, 2022Date: Date:
LoriS. Watson,Member
Date:
ATTEST:
SueWolfgang,Clerk
Date:
S:\\joberlander\\Contracts\\BakerTillyCapitalLLCVoluntaryCarbonOffsetMarketsProfessionalServicesAgreementRevised5.26.22.doc:5/26/202210:01AM\]
11
Baker Tilly US,LLP
4807 Innovate Lane
Madison, WI 53718
United States of America
T: +1 (608) 249 6622
F: +1 (608) 249 8532
bakertilly.com
CONFIDENTIAL
May 24, 2022
Mayor James Brainard
City of Carmel
City Hall, One Civic Square
Carmel, Indiana46032
SENT VIA ELECTRONIC MAIL
Dear Mayor Brainard,
It was great speaking with you recently. Based on our conversations, we understand that the City of
Carmel is interested inlearning more about the voluntary carbon offset industry, identifying ways for
the city to capitalize on existing initiatives, and exploring new opportunities to generate carbon offsets
as a revenue stream. The team at Baker Tilly would be happy to support you in that effort.
The City of Carmel, IN(the “City”or “Client”) is interested in working with Baker TillyUS(“Baker Tilly”)
as its consulting advisor, to provide market intelligence and expertise in the field of voluntary carbon
offsets and to assist with navigating through a carbon offset project feasibility study, the carbon offset
verification process, and the potential marketing of carbon offsets. This engagement letter and the
attached standard business terms (collectively, this “Agreement”) sets forth an understanding of the
nature and scope of the services to be performed and the fees we will charge for the services, to
achieve mutually agreed-upon objectives.
Understanding of Your Needs
Based on previous discussions, we understand that:
EXHIBIT A
Page 1 of 9
The City of Carmel needs Baker Tilly to provide an industry overview on the voluntary carbon
market, including its key players, mechanisms for carbon credit generation and sale, and ways in
which market participants engage.
The City needs to understand the different project pathways or protocols that exist for carbon
offsets and how they can be applied to Carmel’s current sustainability efforts.
The City needs help to potentially apply for a new pathway or protocol through an accredited
carbon registry organization.
Scope of Services
The Energy & Infrastructure Group of Baker Tilly offers clients an array of services including financial
and investment advisory services and energy industry-focused consulting services to augment business
development, project development, and commercial contracting. Based on our conversations, we will
provide the following services (“Services”) to support the City of Carmel’s exploring the feasibility of
carbon offset projects, and, if deemed feasible, supporting the City’s pursuit of developing one or more
carbon offset projects (the “Engagement”).
Services to beprovided are:
Phase I: Industry research and presentation materials: Research and develop internal learning
materials and presentations/collateral (as required) for the City of Carmel detailing the U.S.
voluntary carbon offset markets:
o Provide a detailed summary of the voluntary carbon offset market, including but not
limited to key players, market dynamics, pricing, deal structures, carbon offset pathways
and protocols, and potential opportunities
o Develop internal presentation materials for the City of Carmel, as well as marketing
materials for the City of Carmel to provide and present to third parties
o Make a public presentation on the voluntary carbon offset market at an attendee gathering at
ththeU.S. Conference of Mayors in Reno, Nevada on June 3-6 at the request of Jim Brainard,
Mayor of the City of Carmel.
Phase II: Identify carbon offset generation potential in the City of Carmel: Baker Tillywill provide
advisory services to City of Carmel in its efforts to determine the feasibility of carbon offset credit
generation from existing city programs as well as new market entrance opportunities.
o Review existing City initiatives and programs including the development of roundabouts,
urban tree planting, yard waste disposal, etc. to identify potential offset projects
o Understand the different pathways from the major carbon registries (CAR, ACR, Gold
Standard, Verra) to see if and how Carmel can take advantage of existing project eligibility
pathways
o Determine the feasibility of applying for a new pathway, including the associated costs,
specific project requirements, and the independent verification process
EXHIBIT A
Page 2 of 9
Phase III (to be contingent on the results of Phase II): Initiate the process of verifying one or
more one carbon offset project for the City of Carmel using an existing project eligibility pathway:
o Pursue verification for oneor morecarbon offset project in Carmel through an existing
pathway, for either an existing city initiative or a newsustainability initiative inthe city
e.g.Urban forestry, refrigerator recycling, LFG project, wastewater treatment)
o Support monetizing the carbon offset(s) generated by carbon offset project(s) by assisting
the City of Carmel with (a) outreach to potential buyers or third-party marketers, (b)
negotiating agreements for the sale and monetization of carbon offsets, and (c) other
relevant commercial support as requested by the City of Carmel.
Phase IV (to be contingent on the results of phase II): Pursue the development of one or more
new protocol/pathway through an accredited carbon registry that would enable a carbon
reduction action/activity this is not currently covered under existing protocols:
o Advise City of Carmel on pathway/protocol development and certification process fora
sustainability activity initiative to be identified
o Represent the City of Carmel when dealing with registry officials, independent engineers,
and other stakeholders throughout the pathway/protocol evaluation andcertification
process.
o Support monetizing the carbon offset(s) generated by carbon offset project(s) by assisting
the City of Carmel with (a) outreach to potential buyers or third-party marketers, (b)
negotiating agreements for the sale and monetization of carbon offsets, and (c) other
relevant commercial support as requested by the City of Carmel.
Additional advisory work upon request
o As needed, BT team will attend meetings with the City of Carmel as requested to support
the project goals and activities, and present at conferences upon request
The Client is responsible for all information contained in materials used to market the opportunity,
including assumptions utilized in any pro-forma financials. Any financial models and analysis
prepared by Baker Tilly will be prepared on behalf of the Client for the benefit of the various
stakeholders in the transaction to help them understand the economic terms and tax positions that
are expected to be taken in the documentation of the proposed transaction. These financial models
and analysis do not constitute an audit or review. The Client’s legal counsel should review any of the
underlying documents expected to be executed in the transaction.
Timing, Staffing & Fees
Baker Tilly is prepared to begin work providing Services immediately upon the Client’s authorization,
expected to be in May 2022. Gideon Gradman and Mike Land will lead the Engagement, with advisory
support from Noah Altamirano. Additional professionals to be assigned to the Engagement as
appropriate. Our fees will be structured as follows:
Phase I & II: Industry research and presentation materials
EXHIBIT A
Page 3 of 9
Advisory Consulting Fees: Phase I and Phase IIadvisory work will be performed on a time and materials
basis with professional fees based on our actual time incurred. The budget estimate for this Phase I
and Phase II work is approximately $35,000 – $40,000, based on Baker Tilly’s standard hourly rates.
Mr. Land’s and Mr. Gradman’sstandard hourly rates are $550/hour. Professional staff hourly rates
range between $200 and $350/hour.
Phase III & IV: Carbon project verification process
Advisory Consulting Fees: Phase III and Phase IV advisory work will be performed on a time and
materials basis with professional fees based on our actual time incurred. The budget estimate for this
will depend on the results from Phase I and II. Mr. Land’s and Mr. Gradman’s standard hourly rates
are $550/hour. Professional staff hourly rates range between $200 and $350/hour.
Expense Reimbursement
The Client will reimburse Baker Tilly for all necessary and reasonable out-of-pocket expenses incurred
by Baker Tilly in the performance of the Engagement including, but not limited to, travel for meetings,
property site visits, expenses for the preparation, printing and mailing of any internal presentations or
external marketing materials. Baker Tilly will obtain prior written consent via e-mail from the Client
before incurring any such out-of-pocket expenses.
Other Provisions
Baker Tilly is being retained to serve as the Client’s advisor solely on behalf of the Client, and itis
agreed that the Engagement of Baker Tilly is not, and shall not be deemed to be, on behalf of, and is
not intended to confer rights or benefits upon, any creditor of the Client or upon any other person or
entity. No one other than the Client is authorized to rely upon this Engagement of Baker Tilly or any
statements, conduct or advice of Baker Tilly. All opinions, advice or other assistance (whether written
or oral) given by Baker Tilly in connection with this Engagement will be treated by the Client as
confidential, and no opinion, advice or other assistance of Baker Tilly shall be used for any other
purpose or reproduced, disseminated, quoted or referred to at any time, in any manner or for any
purpose, not shall any public or other references to Baker Tilly (or to such opinions, advice or other
assistance) be made without the express prior written consent of Baker Tilly.
During the course of the Agreement, Baker Tilly may interact with other Project participants (service
providers, investors, lenders, funding parties, utilities, etc.) that have pre-existing client relationships
with Baker Tilly. By signing this letter, the Client acknowledges the potential conflicts of interest that
may arise. In the event of any such conflicts of interest, Baker Tilly shall immediately notify the City
of such circumstance.
Baker Tilly works with many clients that are involved in energy project development across a wide
geographic region. The Client acknowledges by signing below that Baker Tilly is not exclusive in its
relationship with the Client and that Baker Tilly may provide similar services to these separate clients.
EXHIBIT A
Page 4 of 9
Baker Tilly does not draft legal documents, ensuring that operating and funding agreements are
consistent with the Client’s intent and enforceable will be the responsibility of the Client’s law firm.
The Client agrees that, following the closing or consummation of a transaction, Baker Tillyhas the
right to place advertisements in financial and other newspapers and journals at its own expense
describing its services to the Client and the general nature of the transaction completed hereunder.
In doing so Baker Tilly shall not name the Client without the prior written consent of the Client.
The attached Standard Business Terms are hereby incorporated as a material portion of this
Agreement.
If the foregoing correctly sets forth the entire understanding and agreement between Baker Tillyand
the Client, please so indicate in the space provided for that purpose below and return an executed
copy to Baker Tilly, whereupon this letter shall constitute a binding agreement as of the date first
above written.
It is a pleasure for us to be of service to you. We look forward to working with you on this important
project.
Very truly yours, ACCEPTED AND AGREED:
BAKER TILLY US, LLP CITY OF CARMEL IN
Name: Name: Jim Brainard
Title: Principal Title: Mayor
EXHIBIT A
Page 5of 9
These Standard Business Terms (Terms) govern the services provided by Baker Tilly US, LLP (Baker Tilly, we, us or our) set forth in the Statement of Work
to which these Terms are attached (the Services).
Section 1. Confidentiality
With respect to this Agreement and any information supplied in connection with this Agreement and designated by the disclosing party (the Disclosing Party) as “Confidential
Information” either by marking it as “confidential” prior to disclosure to the receiving party (the Recipient) or, if such information is disclosed orally or by inspection, then
by indicating to the Recipient that the information is confidential at the time of disclosure and confirming in writing to the Recipient, the confidential nature of the information
within ten (10) business days of such disclosure, the Recipient agrees to: (i) protect the Confidential Information in the same manner in which it protects its confidential
information of like importance, but in no case using less than reasonable care; (ii) use the Confidential Information only to perform its obligations under this Agreement; and
iii) reproduce Confidential Information only as required to perform its obligations under this Agreement. This section shall not apply to information which is (A) publicly
known, (B) already known to the recipient; (C) disclosed to athird party without restriction; (D) independently developed; or (E) disclosed pursuant to legal requirement or
order, or as is required by regulations or professional standards governing the Services performed. Subject to the foregoing, Baker Tilly may disclose Client’sConfidential
Information to its subcontractors and subsidiaries.
Section 2. Deliverables
a) Materials specifically prepared by Baker Tilly for Client as adeliverable under aStatement of Work (each aDeliverable)may, when fully paid for by Client, be used,
copied, distributed internally, and modified by Client but solely for its internal business purposes. Client shall not, without Baker Tilly’sprior written consent, disclose to a
third party, publicly quote or make reference to the Deliverables. Baker Tilly shall retain all right, title and interest in and to: (i) the Deliverables, including but not limited to,
all patent, copyright, trademark and other intellectual property rights therein; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how
embodied in the Deliverables or that Baker Tilly may develop or supply in connection with this Agreement (the Baker Tilly Knowledge). Subject to the confidentiality
restrictions contained in Section 1, Baker Tilly may use the Deliverables and the Baker Tilly Knowledge for any purpose.
b) The documentation for this engagement, including the workpapers, isnot part of the Deliverables, is the property of Baker Tilly and constitutes confidential information.
We may have aresponsibility to retain the documentation for aperiod of time sufficient tosatisfy any applicable legal or regulatory requirements for records retention. Baker
Tilly does not retain any original client records; so we will return such records to you at the completion of the Services rendered under this engagement. When such records
are returned to you, it is the Company’sresponsibility to retain and protect its accounting and other business records for future use, including potential review by any
government or other regulatory agencies. By your signature below, you acknowledge and agree that, upon the expiration of the documentation retention period, Baker Tilly
shall be free to destroy our workpapers related tothis engagement. If we are required by law, regulation or professional standards to make certain documentation available to
Regulators, Client hereby authorizes us to do so.
c) Baker Tilly and the Company acknowledge that, at the time of the execution of this Engagement Letter, federal, state and local governments, both domestic and foreign,
have restricted travel and/or the movement of their citizens due to the ongoing and evolving situation around COVID-19. In addition, like many organizations and companies
inthe United States and around the globe, Baker Tilly has restricted its employees from travel and onsite work, whether ataclient facility or Baker Tilly facility, to protect
the health of both Baker Tilly and itsclients’ employees. Accordingly, to the extent that any of the Services described in this Engagement Letter requires or relies on personnel
totravel and/or perform work onsite, then Baker Tilly and the Company acknowledge and agree that when the performance of such work depends on physical access to
Client’sfacilities, then such work may be supplanted with alternative procedures, or may be delayed, significantly or indefinitely and/or suspended at Baker Tilly’sdiscretion.
Baker Tilly and the Company agree to provide the other with prompt written notice in the event any of the onsite Services described herein, such as inventory observations
and other procedures, will need to be supplanted, rescheduled and/or suspended. Baker Tilly and the Company also acknowledge and agree that any delays or workarounds
due tothe situation surrounding COVID-19 may increase the cost of the Services described herein. Baker Tilly will obtain the Company’s prior written approval for any
increase in the cost of Baker Tilly Services that may result from the situation surrounding COVID-19.
Section 3. Acceptance
Client shall accept Deliverables which (i) substantially conform to the specifications inthe Statement of Work or (ii) where applicable, successfully complete the mutually
agreed to acceptance test plan described in the Statement of Work. Client will promptly give Baker Tilly written notification of any nonconformance of the Deliverables with
such requirements (Nonconformance) within thirty (30) days following delivery of such Deliverables, and Baker Tilly shall have areasonable period of time, based on the
severity and complexity of the Nonconformance, to correct the Nonconformance sothat the Deliverables substantially conform to the specifications. IfClient uses the
Deliverable before acceptance, fails to promptly notify Baker Tilly of any Nonconformance within such 30-day period, or delays the beginning of acceptance testing more
than five (5) business days past the agreed upon date for the start of such acceptance testing as specified or otherwise determined under the Statement of Work, then the
Deliverable shall be deemed irrevocably accepted by the Client.
Section 4. Standards of Performance
Baker Tilly shall perform its Services in conformity with the terms expressly set forth in this Agreement. Accordingly, our Services shall be evaluated on our substantial
conformance with such terms and standards. Any claim of nonconformance (and applicability of such standards) must be clearly and convincingly shown. Client acknowledges
that the Services will involve the participation and cooperation of management and others of Client. Unless required by professional standards or Client and Baker Tilly
otherwise agree in writing, Baker Tilly shall have no responsibility to update any of its work after its completion.
Section 5. Warranty
a) Each party represents and warrants to the other that it has full power and authority toenter into and perform this Agreement and any Statement of Work entered into
pursuant hereto and the person signing this Agreement or such Statement of Work on behalf of each party hereto has been properly authorized and empowered to enter into
this Agreement.
b) Client warrants that it has the legal right and authority, and will continue to have the legal right and authority during the term of this Agreement, to operate, configure,
provide, place, install, upgrade, add, maintain and repair (and authorize Baker Tilly to do any of the foregoing to the extent the same are included in the Services) the hardware,
software and data that comprises any of Client’sinformation technology system upon which or related to which Baker Tilly provides Services under this Agreement.
c) Baker Tilly warrants that any Services that it provides to Client under this Agreement and any Statement of Work will be performed in accordance with generally accepted
industry standards of care and competence. Client’ssole and exclusive remedy for abreach of Baker Tilly’swarranty will be for Baker Tilly, in its sole discretion, to either:
i) use its reasonable commercial efforts to re-perform or correct the Services, or (ii) refund the fee Client paid for the Services that are in breach of Baker Tilly’swarranty.
Client must make aclaim for breach of warranty in writing within thirty (30) days ofthe date that the Services that do not comply with Baker Tilly’swarranty are performed.
This warranty isvoided in the event that Client makes alterations to the Services provided by Baker Tilly or to the environment in which the Services are used (including the
EXHIBIT A
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physical, network and systems environments) that are not authorized in writing by Baker Tilly. If Client does not notify Baker Tilly of abreach of Baker Tilly’s warranty
during that 30-day period, Client will be deemed to have irrevocably accepted the Services.
d) Baker Tilly does not warrant any third-party product (each, aProduct). All Products are provided to Client by Baker Tilly “AS IS.” Baker Tilly will, to the extent it is
allowed to by its vendors, pass through any warranties and indemnifications provided by the manufacturer of the Product. Client, recognizing that Baker Tilly is not the
manufacturer of any Product, expressly waives any claim that Client may have against Baker Tilly based upon any product liability or infringement or alleged infringement
of any patent, copyright, trade secret orother intellectual property right (each aClaim) with respect to any Product and also waives any right to indemnification from Baker
Tilly against any such Claim made against Client by another. Client acknowledges that no employee ofBaker Tilly orany other party is authorized to make any representation
or warranty on behalf of Baker Tilly that isnot in this Agreement.
e) This section 5is Baker Tilly’sonly warranty concerning the Services and any deliverable, and is made expressly in lieu of all other warranties and representations, express
or implied, including any implied warranties of merchantability, ACCURACY, TITLE, noninfringement or fitness for aparticular purpose, or otherwise.
Section 6. Limitation on Damages and Indemnification
a) The liability (including attorney’sfees and all other costs) of Baker Tilly and its present or former partners, principals, agents or employees related to any claim for damages
relating to the Services performed under this Agreement shall not exceed the fees paid to Baker Tilly for the portion of the work to which the claim relates, except to the extent
finally determined to have resulted from the willful misconduct orfraudulent behavior of Baker Tilly relating to such Services. This limitation ofliability is intended to apply
to the full extent allowed by law, regardless of the grounds ornature ofany claim asserted, including the negligence ofeither party. Additionally, in no event shall either party
be liable for any lost profits, lost business opportunity, lost data, consequential, special, incidental, exemplary orpunitive damages, delays, interruptions or viruses arising out
of or related to this Agreement even if the other party has been advised of the possibility of such damages.
b) As Baker Tilly is performing the Services solely for the benefit of Client, Client will indemnify Baker Tilly, its subsidiaries and their present or former partners, principals,
employees, officers and agents against all costs, fees, expenses, damages and liabilities (including attorneys’ fees and all defense costs) associated with any third-party claim,
relating to or arising as aresult of the Services, Client’suse of the Deliverables, or this Agreement.
c) In the event Baker Tilly is requested by the Client; or required by government regulation, subpoena or other legal process to produce our engagement working papers or
its personnel aswitnesses with respect toits Services rendered for the Client, so long as Baker Tilly isnot aparty to the proceeding in which the information is sought, Client
will reimburse Baker Tilly for its professional time and expenses, as well as the fees and legal expenses, incurred in responding to such arequest.
d) Because of the importance of the information that Client provides to Baker Tilly with respect to Baker Tilly’sability to perform the Services, Client hereby releases Baker
Tilly and its present and former partners, principals, agents and employees from any liability, damages, fees, expenses and costs, including attorney'sfees, relating to the
Services, that arise from or relate to any information, including representations by management, provided by Client, its personnel or agents, that is not complete, accurate or
current, whether or not management knew or should have known that such information was not complete, accurate or current.
e) Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations inthis Agreement are material bargained for bases of this Agreement
and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and inthe decision by each party to
enter into this Agreement.
f) The terms of this Section 6shall apply regardless of the nature ofany claim asserted (including, but not limited to, contract, tort or any form of negligence, whether of
Client, Baker Tilly or others), but these Terms shall not apply to the extent finally determined to be contrary to the applicable law or regulation. These Terms shall also
continue to apply after any termination of this Agreement.
g) Client accepts and acknowledges that any legal proceedings arising from or in conjunction with the Services provided under this Agreement must be commenced within
twelve (12) months after the performance of the Services for which the action is brought, without consideration asto the time of discovery of any claim or any other statutes
of limitations or repose.
Section 7. Personnel
During the term ofthis Agreement, and for aperiod ofsix (6) months following the expiration or termination thereof, neither party will actively solicit the employment of the
personnel of the other party involved directly with providing Services hereunder. Both parties acknowledge that the fee for hiring personnel from the other party, during the
project term and within six months following completion, will be afee equal tothe hired person’sannual salary at the time of the violation soas to reimburse the party for the
costs of hiring and training areplacement.
Section 8. Data Privacy and Security
a) To the extent the Services require Baker Tilly receive personal data or personal information from Client, Baker Tilly may process any personal data or personal
information, as those terms are defined in applicable privacy laws, in accordance with the requirements of the applicable privacy law relevant to the processing inproviding
Services hereunder. Applicable privacy laws may include any local, state, federal or international laws, standards, guidelines, policies or regulations governing the
collection, use, disclosure, sharing or other processing of personal data or personal information with which Baker Tilly or its Clients must comply. Such privacy laws may
include (i) the EU General Data Protection Regulation 2016/679 (GDPR); (ii) the California Consumer Privacy Act of 2018 (CCPA); and/or (iii) other laws regulating
marketing communications, requiring security breach notification, imposing minimum security requirements, requiring the secure disposal ofrecords, and other similar
requirements applicable to the processing of personal data or personal information. Baker Tilly is acting as aService Provider/Data Processor in relation to Client personal
data and personal information, as those terms are defined respectively under the CCPA/GDPR. Client is responsible for notifying Baker Tilly of any data privacy laws the
data provided toBaker Tilly is subject to and Client represents and warrants it has all necessary authority (including any legally required consent from data subjects) to
transfer such information and authorize Baker Tilly to process such information in connection with the Services described herein.
b) Baker Tilly has established information security related operational requirements that support the achievement of our information security commitments, relevant
information security related laws and regulations, and other information security related system requirements. Such requirements are communicated inBaker Tilly’spolicies
and procedures, system design documentation, and contracts with customers. Information security policies have been implemented that define our approach to how systems
and data are protected. Client is responsible for providing timely written notification toBaker Tilly ofany additions, changes or removals of access for Client personnel to
Baker Tilly provided systems or applications. If Client becomes aware of any known or suspected information security orprivacy related incidents or breaches related to this
agreement, Client should timely notify Baker Tilly via email at dataprotectionofficer@bakertilly.com.
c) Baker Tilly does not treat de-identified data or aggregate consumer information aspersonal data or personal information, and we reserve the right to convert Client
personal data or personal information into de-identified data or aggregate consumer information for our own purposes. As abenefit of benchmarking your Company to
others in your industry, you allow us to enter your confidential accounting and/or financial data into the third party benchmarking software that we utilize. By signing this
Engagement Letter, you expressly authorize us to make such disclosure of your confidential accounting and/or financial data, as we may elect within our discretion, with the
understanding that, in doing so, you will not be specifically identified.
Section 9. Termination
EXHIBIT A
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a) This Agreement may be terminated at any time by either party upon written notice to the other. However, upon termination of this Agreement, this Agreement will continue
toremain in effect with respect to any Statement(s) ofWork already issued atthe time of such termination, until such Statements ofWork are themselves either terminated or
the performance thereunder is completed.
b) This Agreement and all Statements of Work may be terminated by either party effective immediately and without notice, upon: (i) the
dissolution, termination of existence, liquidation or insolvency of the other party, (ii) the appointment of a custodian or receiver for the other party, (iii) the institution by or
against the other party ofany proceeding under the United States Bankruptcy Code orany other foreign, federal or state bankruptcy, receivership, insolvency or other similar
law affecting the rights of creditors generally, or (iv) the making by the other party of any assignment for the benefit of creditors.
c) Client shall pay Baker Tilly for all Services rendered and expenses incurred as of the date of termination, and shall reimburse Baker Tilly for all reasonable costs associated
with any termination. Inthe event that collection procedures are required, the Company agrees to be responsible for all expenses of collection including related attorneys’
fees.
d) Any rights and duties of the parties that by their nature extend beyond the expiration or termination of this Agreement, including but not limited to, limitation of liability,
confidentiality, ownership of work product, and survival of obligations, any accrued rights topayment and remedies for breach of this Agreement shall survive the expiration
or termination of this Agreement or any Statement of Work.
Section 10. Dispute Resolution
a) Except for disputes related toconfidentiality or intellectual property rights, all disputes and controversies between the parties hereto ofevery kind and nature arising out
ofor in connection with this Agreement as to the existence, construction, validity, interpretation ormeaning, performance, nonperformance, enforcement, operation, breach,
continuation or termination ofthis Agreement shall be resolved as set forth inthis Section using the following procedure: In the unlikely event that differences concerning the
Services or fees should arise that are not resolved by mutual agreement, both parties agree to attempt ingood faith to settle the dispute by engaging in mediation administered
by the American Arbitration Association under its mediation rules for professional accounting and related services disputes before resorting to litigation or any other dispute-
resolution procedure. Each party shall bear their own expenses from mediation and the fees and expenses ofthe mediator shall be shared equally by the parties. Ifthe dispute
is not resolved by mediation, then the parties agree that the dispute or claim shall be settled by binding arbitration. The arbitration proceeding shall take place in the city in
which the Baker Tilly office providing the relevant Services is located, unless the parties mutually agree to adifferent location. The proceeding shall be governed by the
provisions of the Federal Arbitration Act (FAA) and will proceed in accordance with the then current Arbitration Rules for Professional Accounting and Related Disputes of
the AAA, except that no prehearing discovery shall be permitted unless specifically authorized by the arbitrator. The arbitrator will be selected from Judicate West, AAA,
JAMS, the Center for Public Resources, or any other internationally or nationally-recognized organization mutually agreed upon by the parties. Potential arbitrator names will
be exchanged within 15 days of the parties’ agreement to settle the dispute or claim by binding arbitration, and arbitration will thereafter proceed expeditiously. Any issue
concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of any of these procedures, shall be governed
by the FAA and resolved by the arbitrators. The arbitration will be conducted before asingle arbitrator, experienced in accounting and auditing matters. The arbitrator shall
have no authority to award nonmonetary or equitable relief and will not have the right to award punitive damages or statutory awards. Furthermore, in no event shall the
arbitrator have power to make an award that would be inconsistent with the Engagement Letter or any amount that could not be made or imposed by acourt deciding the
matter in the same jurisdiction. The award of the arbitration shall be in writing and shall be accompanied by awell reasoned opinion. The award issued by the arbitrator may
beconfirmed in ajudgment by any federal or state court of competent jurisdiction. Discovery shall bepermitted in arbitration only to the extent, ifany, expressly authorized
by the arbitrator(s) upon ashowing of substantial need. Each party shall be responsible for their own costs associated with the arbitration, except that the costs of the arbitrator
shall be equally divided by the parties. Both parties agree and acknowledge that they are each giving up the right to have any dispute heard in a court of law before ajudge
and ajury, as well as any appeal. The arbitration proceeding and all information disclosed during the arbitration shall bemaintained as confidential, except as may be required
for disclosure to professional or regulatory bodies or ina related confidential arbitration. The arbitrator(s) shall apply the limitations period that would be applied by acourt
deciding the matter inthe same jurisdiction, including the contractual limitations set forth in this Engagement Letter, and shall have no power to decide the dispute in any
manner not consistent with such limitations period. The arbitrator(s) shall be empowered to interpret the applicable statutes of limitations.
b) Because a breach of any the provisions of this Agreement concerning confidentiality or intellectual property rights will irreparably harm the nonbreaching party, Client
and Baker Tilly agree that ifa party breaches any of its obligations thereunder, the nonbreaching party shall, without limiting its other rights or remedies, be entitled to seek
equitable relief (including, but not limited to, injunctive relief) to enforce its rights thereunder, including without limitation protection of its proprietary rights. The parties
agree that the parties need not invoke the mediation procedures set forth in this section in order to seek injunctive or declaratory relief.
Section 11. Force Majeure
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any act of God, fire, casualty, flood,
war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production
facilities, insurrection, inability to obtain labor, materials, equipment, transportation or energy sufficient to meet needs, or any other cause beyond the reasonable control of
the party invoking this provision (Force Majeure Event), and if such party shall have used reasonable efforts toavoid such occurrence and minimize its duration and has given
prompt written notice to the other party, then the affected party’sfailure to perform shall be excused and the period of performance shall be deemed extended to reflect such
delay as agreed upon by the parties.
Section 12. Taxes
Baker Tilly’sfees are exclusive of any federal, national, regional, state, provincial or local taxes, including any VAT or other withholdings, imposed on this transaction, the
fees, or on Client’suse of the Services or possession of the Deliverable (individually or collectively, the Taxes), all of which shall be paid by Client without deduction from
any fees owed by Client to Baker Tilly. In the event Client fails to pay any Taxes when due, Client shall defend, indemnify, and hold harmless Baker Tilly, its officers, agents,
employees and consultants from and against any and all fines, penalties, damages, costs (including, but not limited to, claims, liabilities or losses arising from or related to
such failure by Client) and will pay any and all damages, as well as all costs, including, but not limited to, mediation and arbitration fees and expenses as well as attorneys’
fees, associated with Client’sbreach of this Section 12.
Section 13. Notices
Any notice or communication required or permitted under this Agreement or any Statement of Work shall be in writing and shall be deemed received (i) on the date personally
delivered; or (ii) the date of confirmed receipt if sent by Federal Express, DHL, UPS or any other reputable carrier service, to applicable party (sending it to the attention of
the title of the person signing this Agreement) at the address specified on the signature page ofthis Agreement orsuch other address as either party may from time to time
designate to the other using this procedure.
Section 14. Miscellaneous
a) This Agreement and any Statement(s) ofWork constitute the entire agreement between Baker Tilly and Client with respect to the subject matter hereof and supersede all
prior agreements, promises, understandings and negotiations, whether written or oral, regarding the subject matter hereof. No terms in any Client purchase order that are
EXHIBIT A
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different from, or additional to, the terms of this Agreement will be accorded any legal effect and are specifically hereby objected to by Baker Tilly. This Agreement and any
Statement of Work cannot be amended unless in writing and signed by duly authorized representatives of each party. Headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
b) In the event that any provision ofthis Agreement or any Statement of Work is held by acourt ofcompetent jurisdiction tobe unenforceable because it is invalid orin
conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed
and enforced as if the Agreement or such Statement of Work did not contain the particular provisions held to be unenforceable. The unenforceable provisions shall be replaced
by mutually acceptable provisions which, being valid, legal and enforceable, come closest to the intention of the parties underlying the invalid or unenforceable provision. If
the Services should become subject to the independence rules of the U.S. Securities and Exchange Commission with respect to Client, such that any provision of this Agreement
would impair Baker Tilly’sindependence under its rules, such provision(s) shall be of no effect.
c) Neither this Agreement, any Statement of Work, any claims nor any rights or licenses granted hereunder may be assigned, delegated or subcontracted by Client without
the written consent of Baker Tilly. Either party may assign and transfer this Agreement and any Statement of Work to any successor that acquires all or substantially all of the
business or assets of such party by way of merger, consolidation, other business reorganization, or the sale of interests or assets, provided that the party notifies the other party
in writing of such assignment and the successor agrees in writing to be bound by the terms and conditions of this Agreement.
d) The validity, construction and enforcement of this Agreement shall bedetermined in accordance with the laws of the State of Illinois, without reference to its conflicts of
laws principles, and any action (whether by arbitration or in court) arising under this Agreement shall be brought exclusively in the State of Illinois. Both parties consent to
the personal jurisdiction of the state and federal courts located in Illinois.
e) The parties hereto are independent contractors. Nothing herein shall be deemed to constitute either party as the representative, agent, partner or joint venture of the other.
Baker Tilly shall have no authority tobind Client toany third-party agreement. Though the Services may include Baker Tilly’sadvice and recommendations, all decisions
regarding the implementation of such advice or recommendations shall be the responsibility of, and made by, Client.
f) The failure of either party at any time to enforce any of the provisions of this Agreement or aStatement ofWork will in no way be construed as awaiver ofsuch provisions
and will not affect the right of party thereafter to enforce each and every provision thereof in accordance with its terms.
g) Client acknowledges that: (i) Baker Tilly and Client may correspond or convey documentation via Internet e-mail unless Client expressly requests otherwise, (ii) neither
party has control over the performance, reliability, availability orsecurity ofInternet e-mail, and (iii) Baker Tilly shall not be liable for any loss, damage, expense, harm or
inconvenience resulting from the loss, delay, interception, corruption or alteration of any Internet e-mail.
h) Except to the extent expressly provided to the contrary, no third-party beneficiaries are intended under this Agreement.
i) The Services performed under this Agreement do not include the provision of legal advice and Baker Tilly makes no representations regarding questions of legal
interpretation. Client should consult with its attorneys with respect to any legal matters or items that require legal interpretation under federal, state or other type of law or
regulation.
j) Baker Tilly US, LLP is an independent member of Baker Tilly International. Baker Tilly International Limited is an English company. Baker Tilly International provides
no professional services to clients. Each member firm isaseparate and independent legal entity and each describes itself as such. Baker Tilly US, LLP is not Baker Tilly
International’sagent and does not have the authority to bind Baker Tilly International or act on Baker Tilly International’sbehalf. None of Baker Tilly International, Baker
Tilly US, LLP, nor any of the other member firms of Baker Tilly International has any liability for each other’s acts or omissions. The name Baker Tilly and its associated
logo is used under license from Baker Tilly International Limited
EXHIBIT A
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EXHIBIT B
Invoice
Date:
Name ofCompany:
Address & Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No.
Purchase Order No:
Goods Services
Person Providing Date Goods/Services Provided Cost Per Hourly Total
Goods/Services Goods/ (Describe each good/service Item Rate/
Service separately and in detail) Hours
Provided Worked
GRAND TOTAL
Signature
Printed Name
EXHIBIT
AFFIDAVIT
being first duly sworn, deposes and says that
he/she is familiar with and has personal knowledge of the facts herein and, if called as a witness in this
matter, could testify as follows:
1.I am over eighteen (18) years of age and am competent to testify to the facts contained
herein.
2.I am now and at all times relevant herein have been employed by
in the position of ______________________________________.
3.I am familiar with the employment policies, practices, and procedures of the Employer and
have the authority to act on behalf of the Employer.
4.The Employer is enrolled and participates in the federal E-Verify program and has
provided documentation of such enrollment and participation to the City of Carmel,
Indiana.
5.The Company does not knowingly employ any unauthorized aliens.
FURTHER AFFIANT SAYETH NOT.
EXECUTED on the _________day of __________________________, 20___.
Printed:_____________________________
I certify under the penalties for perjury under the laws of the United States of America and the State of
Indiana that the foregoing factual statements and representations are true and correct.
Printed: _____________________________
Page 1 of 1INDIANARETAILTAXEXEMPT
CERTIFICATE NO. 003120155 0020PURCHASE ORDERNUMBERCityofCarmel
FEDERAL EXCISE TAXEXEMPT 106552
35-6000972 THIS NUMBER MUST APPEAR ON INVOICES, A/PONECIVICSQUARE
VOUCHER, DELIVERY MEMO, PACKING SLIPS, CARMEL, INDIANA 46032-2584 SHIPPING LABELS AND ANY CORRESPONDENCE
FORM APPROVED BYSTATE BOARD OFACCOUNTS FOR CITY OFCARMEL - 1997
PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION
5/20/2022376513
BAKER TILLY CAPITAL LLC Mayor's Office
VENDORSHIPPOBOX7398 1Civic Square
TO Carmel, IN 46032-
MADISON, WI 53707--7398
PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT
65936
QUANTITYUNIT OF MEASUREDESCRIPTIONUNIT PRICEEXTENSION
Department:Fund: 1160101General Fund
Account: 43-419.99
1EachPROFESSIONAL SERVICES FOR VOLUNTARY CARBON $35,000.00$35,000.00
OFFSET INDUSTRY
Sub Total 35,000.00
Send Invoice To:
Mayor's Office
1 Civic Square
Carmel, IN 46032-
PLEASE INVOICE INDUPLICATE
DEPARTMENTACCOUNTPROJECTPROJECT ACCOUNTAMOUNT
35,000.00PAYMENT
A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE ASHIPPINGINSTRUCTIONSPARTOFTHEVOUCHERANDEVERYINVOICEANDVOUCHERHASTHEPROPERSWORN
SHIP PREPAID. AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN
C.O.D. SHIPMENT CANNOT BE ACCEPTED.THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER.
PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL
THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945
ORDERED BYANDACTSAMENDATORYTHEREOFANDSUPPLEMENTTHERETO.
Sharon KibbeJames Crider
TITLEExecutive Office ManagerDirector ofAdministration
CONTROL NO. 106552 CONTROLLER
CzTfshfzHsfdivlijobu3;67qn-Nbz38-3133
EXHIBIT A
Page 1 of1
Page 1 of 1INDIANARETAILTAXEXEMPT
CERTIFICATE NO. 003120155 0020PURCHASE ORDER NUMBERCityofCarmel
FEDERAL EXCISE TAXEXEMPT 106558
35-6000972 THIS NUMBER MUST APPEAR ON INVOICES, A/PONECIVICSQUARE
VOUCHER, DELIVERY MEMO, PACKING SLIPS, CARMEL, INDIANA 46032-2584 SHIPPING LABELS AND ANY CORRESPONDENCE
FORM APPROVED BYSTATE BOARD OFACCOUNTS FOR CITY OFCARMEL - 1997
PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION
CONSULTING FOR PUBLIC ART ON2 ROUNDABOUTS ON5/24/2022372450 MAIN STREET
BAYLISS & CO. LLC Mayor's Office
VENDORSHIP415DAVISDRIVE 1Civic Square
TO Carmel, IN 46032-
ANDERSON, IN 46011--2274
PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT
65946
QUANTITYUNIT OF MEASUREDESCRIPTIONUNIT PRICEEXTENSION
Department:Fund: 1160101General Fund
Account: 43-419.99
1EachCONSULTING FOR PUBLIC ART ON TWO ROUNDABOUTS $5,000.00$5,000.00
ON MAIN STREET: EDUCATION CORRIDOR
Sub Total 5,000.00
Send Invoice To:
Mayor's Office
1 Civic Square
Carmel, IN 46032-
PLEASE INVOICE INDUPLICATE
DEPARTMENTACCOUNTPROJECTPROJECT ACCOUNTAMOUNT
5,000.00PAYMENT
A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE ASHIPPINGINSTRUCTIONSPARTOFTHEVOUCHERANDEVERYINVOICEANDVOUCHERHASTHEPROPERSWORN
SHIP PREPAID. AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN
C.O.D. SHIPMENT CANNOT BE ACCEPTED.THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER.
PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL
THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945
ORDERED BYANDACTSAMENDATORYTHEREOFANDSUPPLEMENTTHERETO.
Sharon Kibbe
TITLEExecutive Office Manager
CONTROL NO. 106558 CONTROLLER
MANAGEMENT AGREEMENT CzKpoPcfsmboefsbu23;67qn-Kvo19-3133
THIS MANAGEMENT AGREEMENT ("Agreement"), is entered into by and between the
City of Carmel, Indiana, by and through its Board of Public Works and Safety ("Owner"), and the
Carmel/Clay Board of Parks and Recreation ("Manager").
WHEREAS, Owner is a municipality that owns certain real property consisting of
approximately twenty-nine (29) acres located south of Hazel Landing Parkand west of the White River
in the City ofCarmel, Clay Township, Hamilton County, Indiana and commonly known asthe Blue
Woods CreekProperty(the "Real Estate"), whichis described in greater detail inExhibit A, which is
attached hereto and incorporated herein by this reference; and
WHEREAS, Manager is responsible for the operation and maintenance of certain public parks,
playgrounds and trailslocated within the City of Carmel; and
WHEREAS, Owner desires to have Manager manage the Real Estate, and Manager desires to
manage the Real Estate, subject to the terms, conditions and limitations set forth in any deeds, easement
agreements and other instruments of record orotherwise made known by Owner to Manager, in writing,
regarding same, under and pursuant to the terms and conditions set forth inthis Agreement and that
certain interlocal agreement entitled "lnterlocal Cooperation Agreement Between the City of Carmel,
Indiana and Clay Township of Hamilton County, Indiana" ("lnterlocal Agreement") entered into by and
between Owner and Clay Township, Indiana on July 26, 2002, as amended.
NOW, THEREFORE, in consideration of the foregoing Recitals, and the covenants and
conditions set forth hereinbelow, Owner and Manager enter into this Agreement and mutually agree as
follows:
ARTICLE I
Incorporation of Recitals
1.1The foregoing Recitals are hereby incorporated into and made apart of this Agreement.
ARTICLE II
Performance
2.1 Owner hereby agrees to engage Manager to manage the Real Estate and Manager hereby agrees
to accept the management of the Real Estate subject to the terms, conditions and limitations set
forth in any deeds, easement agreements and other instruments of record or otherwise made
known to Manager by Owner in writing, the terms and conditions set forth in the lnterlocal
Agreement and the terms and conditions of this Agreement.
2.2 Time isof the essence of this Agreement.
ARTICLE III
Term; Renewal
3.1 The term of this Agreement shall be thirty (30) years, beginning on January 1, 2023 (“Term”).
3.2 Subject to the termination provisions contained herein, this Agreement shall automatically renew
for additional terms of ten (10) years beginning on the expiration date ofthe immediately
preceding term. Such renewals shall be upon the same terms and conditions as are contained in
the Agreement for the initial term, as the same may be amended from time to time.
ARTICLE IV
Management Fee; Taxes and Assessments
4.1 Owner agrees to pay Manager amanagement fee of Ten Dollars ($10.00) for the management of
the Real Estate, the receipt and sufficiency of which is hereby acknowledged.
4.2 Owner shall pay all taxes and assessments on the Real Estate that become due and payable
during the Term or any extension thereof.
ARTICLE V
Insurance
5.1 Manager agrees to obtain, and to keep in force throughout the Term and/or any extension
thereof, at Manager's sole expense, commercial general liability insurance ("Insurance") from an
insurer licensed to do business in Indiana, against any and allclaims for personal injury
including bodily injury and death) and/or property damage occurring on the Real Estate. The
Insurance shall afford coverage, in an amount of not less than Five Hundred Thousand Dollars
500,000.00) with respect to the personal injury of any one person, inan amount of not less than
One Million Dollars ($1,000,000.00) per occurrence involving two or more persons, and in an
amount of not less than One Hundred Thousand Dollars ($100,000.00) per occurrence involving
property damage.
5.2 Manager shall cause its insurers to name Owner as an additional insured on all Insurance
policies, shall promptly provide Owner, upon request, with a certificate ofinsurance that
evidences such coverage, and shall provide that such insurance policies shall not becanceled
without thirty (30) days prior notice to Owner.
ARTICLE VI
Use of Real Estate
6.1 Manager agrees that the Real Estate will be used and managed by it only as a park, greenway and
natural area for the benefit of the general public, whereon lawful recreational activities such as,
but not limited to, walking, running, roller skating, bicycling, roller blading and related parkand
recreational activities may take place under Manager'swritten rules and regulations and
Manager's control, for the Term and any extensions thereof.
6.2 Manager agrees to submit to Owner for Owner's approval a written master plan ("Master Plan")
for making such improvements to the Real Estate as are necessary for effective management and
public use, for maintaining order on the Real Estate and for maintaining the Real Estate in a safe,
neat and attractive state pursuant to and in compliance with all applicable laws and with all
covenants, restrictions, obligations and limitations agreed to by Owner at the time of Owner's
purchase or acceptance of a property interest in the Real Estate. Should Owner fail to act onthe
Master Plan within ninety (90) calendar days from the receipt ofsame by Owner, with a copy of
same contemporaneously provided to the Carmel Corporation Counsel, the Master Plan shall be
deemed approved. The Master Plan, once approved by the parties, cannot be changed, modified
or superseded without the express prior written consent of Owner.
6.3 Manager agrees to comply with all applicable laws, orders, rules and regulations of any federal,
state or municipal government, court, department or agency that is applicable to the Real Estate
and/or toManager's use thereof.
6.4 Manager agrees to accept the Real Estate "as-is” in itspresent condition, and to make, at its sole
expense, such improvements as are required by Manager consistent with the Master Plan and all
applicable law.
6.5Owner agrees tocooperate with Manager to the extent that Manager must seek government
issued permits in order to fulfill itsobligations and responsibilities under and pursuant to the
Agreement that require the authorization and approval of Owner.
6.6 Owner reserves the right to temporarily close any trail or park located on the Real Estate ifsuch
closure is necessary for the maintenance or repair of Owner’s facilities located thereon. For
routine maintenance orrepairs, Owner shall provide the Manager with seven (7) calendar days’
notice of the closure. Owner may immediately close any trail or park located on the Real Estate
to repair its facilities in the case of a bona fide emergency.
6.7 At the expiration of the Term and any extension(s) thereof, or upon the earlier termination of this
Agreement as provided herein, or upon Owner's otherwise lawful re-entry on the Real Estate,
Manager shall surrender the Real Estate to Owner in substantially the same condition that the
Real Estate was in at the beginning of the Term, normal wear and tear and such improvements
installed thereon and therein consistent with the approved Master Plan excepted.
6.8 Owner agrees that, if and solong as Manager keeps and substantially performs each material
term and condition herein imposed upon Manager, and if and so long as this Agreement is not
lawfully terminated, Manager shall quietly enjoy the Real Estate without hindrance or
molestation by Owner or any person lawfully claiming under Owner, subject to any property
rights or interests of others therein as set forth inany deed, easement agreement or other
instrument of record regarding the Real Estate and Owner’s obligations thereunder, as well as to
Owner’s rights, obligations and duties under law and this Agreement.
ARTICLE VII
Maintenance; Utilities
7.1 Manager agrees to keep the Real Estate reasonably clean, sanitary, safe, neat, attractive and free
from refuse at all times during the Term and any extension(s) thereof, to provide fireproof
containers for the storage of refuse thereon, and to arrange for the regular pickup ofsuch refuse,
all atManager's expense.
7.2 Manager agrees to pay all maintenance expenses related to Manager’s use or management of the
Real Estate, including, but not limited to, labor, machinery and equipment.
7.3 Manager agrees to pay all utility service and expenses associated with Manager’s use or
management of the Real Estate.
ARTICLE VIII
Liens
8.1 Manager agrees that it will not create nor by its own actions provide the basis for the creation or
continuance of any mechanic's, materialman's or other lien that encumbers the Real Estate. If
such a lien is created which encumbers the Real Estate and is not released or bonded over by
Manager within thirty (30) days of its attachment, the Owner shall have the right to pay such lien
or obtain such bond, all at Vendor’s sole cost and expense.
ARTICLE IX
Owner’s Right to Perform Work; Inspections
9.1 If Manager should, at any time during the Term or any extension thereof, fail to perform its
obligations under this Agreement, and shall not, upon ten (10) calendar days’ notice of such
default from Owner, fully cure same, Owner may supply the omitted performance. Any
reasonable expense incurred by Owner in so doing shall constitute an obligation of Manager
which shall be payable within sixty (60) calendar days of Manager's receipt ofan itemized
invoice from Owner regarding same. Notwithstanding the foregoing, in the event of an
emergency, Owner shall be entitled to immediately cure any default or perform any of Manager's
obligations hereunder at Manager's sole cost and expense.
9.2 Owner shall have the right, at any time and without demand or notice, to enter upon the Real
Estate for the purpose of determining whether Manager isperforming its obligations under this
Agreement, to comply with its obligations under and pursuant to the terms and conditions of any
deeds, easement agreements and other instruments of record asregards the Real Estate, or for
any other lawful purpose.
ARTICLE X
Indemnity
10.1 Manager agrees toindemnify and hold Owner harmless from any and all liabilities, losses, costs,
damages and expenses, including, but not limited to, reasonable attorney fees, the 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, unless such
injury, death or damage is the result of Owner's negligent conduct or intentional action on the
Real Estate. This obligation shall survive the termination of this Agreement.
10.2 As between Owner and Manager, any property of either shall be kept, stored or maintained on or
in the Real Estate at such party'sown risk and expense.
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, reasonable attorney fees, that 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 damages
arises, or is alleged to arise, out of Owner's use of, or actions on, the Real Estate, unless such
injury, death or damage is the result of Manager's negligent conduct or intentional action on the
Real Estate. This obligation shall survive the termination of this Agreement.
ARTICLE XI
Assignment
11.1Manager shall not assign this Agreement without the prior written consent and agreement of
Owner.
ARTICLE XII
Default; Termination
12.1 In the event Manager repudiates, breaches or defaults under any of the terms or conditions of this
Agreement and does not correct such failure or breach within ten (10) calendar days (or such
shorter period of time as is commercially reasonable under the circumstances) after receipt of
written notice from Owner specifying such failure or breach, or becomes insolvent, isplaced
into receivership, makes a general assignment for the benefit of creditors or dissolves, each such
event constituting an event of default hereunder, Owner shall have the right to (1) terminate all
or any parts ofthis Agreement, without liability to Manger; and (2) exercise all other rights and
remedies available toOwner at law and/or in equity.
12.2 Notwithstanding anything to the contrary set forth herein, this Agreement shall immediately
terminate if the Interlocal Agreement is terminated.
12.3 Owner may terminate this Agreement at any time upon one hundred eighty (180) days written
notice prior to any January 1 of the Term, with such termination effective as of that January 1.
ARTICLE XIII
Notice
13.1 Any notice provided for in this Agreement will be sufficient if it is inwriting and is delivered by
postage prepaid U.S. certified mail, return receipt requested, or by personal service, to the party
to benotified at the address specified herein:
If to Owner: City of Carmel AND City of Carmel
Office of the Mayor Office of Corporation Counsel
One Civic Square One Civic Square
Carmel, Indiana 46032 Carmel, Indiana 46032
If to Manager: Carmel Clay Parks & Recreation
th1411E. 116Street
Carmel, IN 46032
Attn: Michael Klitzing
ARTICLE XIV
Miscellaneous
14.1 The failure of either party to require performance by the other of any provision ofthis
Agreement shall not affect the right of such party to require such performance at any time
thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement
constitute a waiver of any succeeding breach of the same or any other provision hereof.
14.2 Notwithstanding any other provision of this Agreement, this Agreement is subject to all
easements and other restrictions of record regarding the Real Estate, and to Owner'sgeneral
police powers, Home Rule rights and obligations, and all of Owner's other lawful rights,
obligations, privileges and powers.
14.3 This Agreement may only be modified by written amendment executed by both parties hereto.
14.4This Agreement is the joint work of both parties and shall not bestrictly construed against either
party but shall beinterpreted in a fair and reasonable manner so as to best fulfill the intent and
purpose of the parties hereto.
14.5 All headings and sections of this Agreement are inserted for convenience only and do not limit,
expand or otherwise alter the meaning of any provision hereof.
14.6 The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and
obligations set forth in Agreement.
14.7The parties warrant that they have read this Agreement and understand it, have had the
opportunity to obtain legal advice and assistance of counsel throughout the negotiation of same,
and enter into this Agreement freely, voluntarily and without any duress, undue influence or
coercion.
14.8This Agreement shall be construed in accordance with and governed by the laws of the State of
Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is
filed hereunder, they waive their right toa jury trial, agree tofile any such lawsuit in an
appropriate court inHamilton County, Indiana, only, and agree that such court is the appropriate
venue for and has jurisdiction over same.
14.9 The parties hereto represent and warrant that they are authorized to enter into this Agreement and
that the person(s) executing this Agreement have the authority to bind the party which they
represent.
14.10 If any term of this Agreement invalid or unenforceable under any statute, regulation, ordinance,
executive order or other rule of law, such term shall be deemed reformed or deleted only to the
extent necessary tocomply with same, and the remaining provisions ofthis Agreement shall
remain in full force and effect.
14.11 This Agreement, together with all exhibits attached hereto and all matters incorporated by
reference herein, constitutes the entire agreement between Owner and Manager with respect to
the subject matter hereof, and supersedes all prior oral or written representations and agreements
regarding same.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA CARMEL CLAY BOARD OF
PARKS & RECREATION
by and through its Board of Public
Works and Safety
By: By:
James Brainard, Presiding Officer Authorized Signature
Date:
Printed Name
Mary Ann Burke, Member
Date:
Title
Date:
Lori S. Watson, Member
Date:
ATTEST:
Sue Wolfgang, Clerk
Date:
CzTfshfzHsfdivlijobu2;18qn-Nbz42-3133
BrennanEquipmentServicesCompany
Utilities - 2022
P.O. #S03135
ContractNotToExceed $3
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or thatis a part of the Goods and Services.
7.LIENS:
Vendor shall not cause or permit the filing of any lien on any of City’s property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor’s sole cost and expense.
8.DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Vendor’s warranties; (b) fails to provide the Goods and Services as specified herein;
c)fails to make progress so as to endanger timely and proper provision of the Goods and Services and does
not correct such failure or breach within five (5) business days (or such shorter period of time as is
commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or
breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of
creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to
1)terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights
and remedies available to City at law and/or in equity.
9.INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and
Vendor from all claims for damages under any workers’ compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
disease or death of or to any of Vendor’s agents, officers, employees, contractors and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City, upon request, with copies of all such policies, and shall provide that such insurance policiesshall not be
canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor’s
provision of Goods and Services pursuant to or under this Agreement or Vendor’s use of City property.
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor’s agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
S:\\joberlander\\Contracts\\Brennan Equipment Svcs Utilities Forklift Contract 2022.doc:5/23/2022 3:58 PM\]
2
BrennanEquipmentServicesCompany
Utilities - 2022
P.O. #S03135
ContractNotToExceed $
10.GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Vendor’sperformance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless
City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules,
regulations and codes. This indemnification obligation shall survive the termination of this Agreement.
11.NONDISCRIMINATION:
Vendor 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 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.
12.E-VERIFY:
Pursuant to I.C. § 22-5-1.7et seq., as the same may be amended from time to time, and as is incorporated
herein by this reference (the “Indiana E-Verify Law”), Vendor is required to enroll in and verify the work
eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit
attached herein as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does
not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with
documentation indicating that it has enrolled and is participating in the E-Verify program. Should
Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully
comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Vendor or any
subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if
no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or
those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-
Verify program cease to exist.
13.NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any
party of a breach of any provision of this Agreement constitute awaiver of any succeeding breach of the
same or any other provision hereof.
14.NON-ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not
delegate its obligations under this Agreement without City’s prior written consent.
15.RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement
S:\\joberlander\\Contracts\\Brennan Equipment Svcs Utilities Forklift Contract 2022.doc:5/23/2022 3:58 PM\]
3
BrennanEquipmentServicesCompany
Utilities - 2022
P.O. #S03135
ContractNotToExceed $3
16.GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they
waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
17.SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18.NOTICE:
Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S. certified mail, return receipt requested, to the partyto be notified at the address specified
herein:
If to City: Carmel Utilities AND Jon Oberlander
30 W. Main Street Ste. 220 Corporation Counsel
Carmel, Indiana 46032Department of Law
One Civic Square
Carmel, Indiana 46032
If toVendor: Brennan EquipmentServices Company
6940 Hall Street
Holland, OH 43528
Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from
the date of such oral notice.
19.TERMINATION:
19.1Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing conforming Goods and
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
19.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate.
S:\\joberlander\\Contracts\\Brennan Equipment Svcs Utilities Forklift Contract 2022.doc:5/23/2022 3:58 PM\]
4
BrennanEquipmentServicesCompany
Utilities - 2022
P.O. #S03135
ContractNotToExceed $3
20.REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
21.ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and services from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor’s time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City’sauthorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City.
22.TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2022 and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
23.HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
24.BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25.NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone otherthan City and Vendor.
26.DEBARMENT AND SUSPENSION
26.1The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its
subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from entering into this Agreement by any federal agency or by any department, agency or political
subdivision of the State of Indiana. The term “principal” for purposes of this Agreementmeans an officer,
director, owner, partner, key employee or other person with primary management or supervisory
responsibilities, or a person who has acritical influence on or substantive control over the operations of the
Vendor.
26. 2The Vendor certifies that it has verified the state and federal suspension and debarment status for all
subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment,
penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall
immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City’s
request, take all steps required by the Cityto terminate its contractual relationship with the subcontractor for
work to be performed under this Agreement.
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5
HYUNDAI MODEL
30L-7A
PROPOSAL TO:
CITY OF CARMEL, IN
Jeff Cooper
May 25, 2022
COLUMBUS | INDIANAPOLIS | CINCINNATI | TOLEDO | DAYTON | FORT WAYNE
P (800) 875-FORK (3675) | F (419) 867-6667 | www.gobrennan.com
EXHIBIT A
PAGE 1 OF 3
BRENNAN EQUIPMENT SERVICES
INVESTMENT PROPOSAL
BrennanEquipmentServiceswouldliketothankyoufortheopportunitytosubmitthisproposal. Weoffer:
Quantity (1) NEW HYUNDAI MODEL 30L-7A 6,000 lb. Basic Capacity
2.4L LPG Hyundai Engine (less tank)
Swing Out LP tank bracket
Single Speed Automatic Transmission
3 Stage Mast 8685
Tilt: 6 forward/6back
Sideshift with 43.4
42
4 Spool Valve with 4 Seat-side Hydraulic Levers
4 Function Hydraulic Hose Take-up
85
Operator Presence Sensing System All Hydraulic and Transmission Functions Disconnected
When Operator Leaves the Seat After 3 Seconds
2) Front Headlights/Turn Signals
Rear Combination Brake/Tail Lights
Amber LED Strobe Light
Back-up Alarm
Rearview Mirrors
Adjustable Steering Wheel with Spinner Knob
Full Suspension Seat with High Visibility Seat Belt
Solid Pneumatic Drive and Steer Tires
Wet Disc Brake System 5 times the life of standard shoe/drum brakes
Hydrostatic Power Steering
State-of-the art hydraulic system with O-ring faced fittings
Length to face of forks: 10648.494.4
Standard Warranty 3 Years 4000 Hours
INVESTMENT:
Purchase Price, Ea. ..............................................................................................$32,875.18
SCHEDULED MAINTENANCE-PERFORMED EVERY 350 HOURS (HYUNDAI FORKLIFT):
Scheduled PM Rate (includes labor and travel) $95.00
EXHIBIT A
PAGE 2 OF 3
COLUMBUS | INDIANAPOLIS | CINCINNATI | TOLEDO | DAYTON | FORT WAYNE
P (800) 875-FORK (3675) | F (419) 867-6667 | www.gobrennan.com
BRENNAN EQUIPMENT SERVICES
tƒNet
30 Days C h.
Norcross, GATHIS FORKLIFT IS CURRENTLY ON ORDER FOR OUR STOCK; PROMISED SHIP DATE
FROMHYUNDAIIS 6/6/22. WE WOULD EXPECT TO DELIVER TO YOU WEEK OF 6/20/22. THIS UNIT
IS OFFERED SUBJECT
TO PRIOR SALE.
TERMS ANDCONDITIONS1. YoursignatureontheProposalconstitutesanordersubjecttotheapprovalof Brennan
Equipment Services. (Brennan). 2. Anyconflictingoradditionaltermsin Customerspurchaseorder, offerorotherpurchasedocumentwillnot
becomepartoftheContractunlessspecificallyacceptedbyBrennanin itswrittenacceptance. IfCustomerplacesan
orderorallyorelectronicallytransmitsapurchaseordernumberandsubsequentlytransmitsawrittenpurchaseorder
withconflicting oradditionalterms, suchtermswillnotbecomepartoftheContract
under anycircumstances. 3. Unlessotherwisespecifiedinawritingsignedbyanauthorized representativeofBrennan, Brennan
providesnowarrantiesexceptthemanufacturerswarrantiesashereinreferenced inthisquote, andBrennanspecifically
disclaimsallwarranties, includingexpresswarrantiesorimpliedwarrantiesofmerchantabilityorfitnessfor
a particularuse. 4. Oncethisorderhasbeenacceptedit isnon-cancellable. Brennanreservestherighttoacceptthe
cancellation andcharge25% of thesellingprice. Thecancellationchargeisimmediatelyduefromcustomerupon
acceptanceby Brennan. Proposal
By: Tom Backoff Thomas J. Backoff
5/25/22 ExecutiveVice President/
SalesManager
DateAccepted By:
Customer Representative
Date EXHIBIT A PAGE
3 OF 3 COLUMBUS | INDIANAPOLIS | CINCINNATI | TOLEDO |
DAYTON | FORT WAYNE P (800) 875-FORK (3675) | F (419) 867-6667 |
EXHIBIT B
Invoice
Date:
Name ofCompany:
Address & Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No.
Purchase Order No:
Goods Services
Person Providing Date Goods/Services Provided Cost Per Hourly Total
Goods/Services Goods/ (Describe each good/service Item Rate/
Service separately and in detail) Hours
Provided Worked
GRAND TOTAL
Signature
Printed Name
EXHIBIT C
INSURANCE COVERAGES
Statutory Limits
Bodily Injury by Accident/Disease: $100,000 each employee
Bodily Injury by Accident/Disease: $250,000 each accident
Bodily Injury by Accident/Disease: $500,000 policy limit
Property damage, contractual liability,
products-completed operations:
General Aggregate Limit (other than
Products/Completed Operations): $500,000
Products/Completed Operations: $500,000
Personal & Advertising Injury
Policy Limit: $500,000
Each Occurrence Limit: $250,000
Fire Damage (any one fire): $250,000
Medical Expense Limit (any one person): $ 50,000
Comprehensive Auto Liability (owned, hired and non-owned)
Bodily Single Limit: $500,000 each accident
Injury and property damage: $500,000 each accident
Policy Limit: $500,000
Umbrella Excess Liability
Each occurrence and aggregate: $500,000
Maximum deductible: $ 10,000
CzTfshfzHsfdivlijobu:;5:bn-Nbz38-3133
CzTfshfzHsfdivlijobu22;27bn-Kvo13-3133
5/26/2022
JAF PROPERTY SERVICES
INDIANAPOLIS, IN 46256 -
106573
8020 BAY BROOK DRIVE
City of Carmel
ONE CIVIC SQUARE
CARMEL, INDIANA 46032-2584
FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL - 1997
INDIANA RETAIL TAX EXEMPT
CERTIFICATE NO. 003120155 002 0
FEDERAL EXCISE TAX EXEMPT
35-6000972
PURCHASE ORDER NUMBER
THIS NUMBER MUST APPEAR ON INVOICES, A/P
VOUCHER, DELIVERY MEMO, PACKING SLIPS,
SHIPPING LABELS AND ANY CORRESPONDENCE
PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION
VENDOR SHIP
TO
PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT
EXTENSION
Cabling - New Admin
Carmel Fire Department
10701 N. College Avenue, Ste A
Carmel, IN 46280-
372781
UNITPRICEDESCRIPTIONUNITOFMEASUREQUANTITY
Page 1 of 1
66089
1120Department:0Fund:Capital Lease Fund
44-670.99Account:
Network Cabling Equipment for New AdminBuilding1 $91,890.00 $91,890.00Each
91,890.00SubTotal
1120Department:101Fund:General Fund
43-501.00Account:
Network Drop - Labor - New AdminBuilding1 $24,750.00 $24,750.00Each
24,750.00SubTotal
116,640.00
Send Invoice To:
PLEASE INVOICE IN DUPLICATE
DEPARTMENT ACCOUNT PROJECT PROJECT ACCOUNT AMOUNT
SHIPPING INSTRUCTIONS
SHIP PREPAID.
C.O.D. SHIPMENT CANNOT BE ACCEPTED.
PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL
AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO.
THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945
PAYMENT
A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A
PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN
AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN
THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER.
CONTROL NO. 106573
ORDERED BY
TITLE
CONTROLLER
Carmel Fire Department
2 Civic Square
Carmel, IN 46032-
Denise Snyder James Crider
Accreditation/Budget Administrator Director of Administration
MANAGEMENT AGREEMENT CzKpoPcfsmboefsbu3;39qn-Kvo17-3133
THIS MANAGEMENT AGREEMENT ("Agreement"), is entered into by and between the
City of Carmel, Indiana, by and through its Board of Public Works and Safety ("Owner"), and the
Carmel/Clay Board of Parks and Recreation ("Manager").
WHEREAS, Owner is a municipality that owns certain real property consisting of
thapproximatelyeleven (11) acres located south of 116Street and west of the White River inthe City of
Carmel, Clay Township, Hamilton County, Indiana and commonly known as the NorthernBeach
Property(the "Real Estate"), which is described in greater detail in Exhibit A, which is attached hereto
and incorporated herein by this reference; and
WHEREAS, Manager is responsible for the operation and maintenance of certain public parks,
playgrounds and trailslocated within the City of Carmel; and
WHEREAS, Owner desires to have Manager manage the Real Estate, and Manager desires to
manage the Real Estate, subject to the terms, conditions and limitations set forth in any deeds, easement
agreements and other instruments of record orotherwise made known by Owner to Manager, in writing,
regarding same, under and pursuant to the terms and conditions set forth inthis Agreement and that
certain interlocal agreement entitled "lnterlocal Cooperation Agreement Between the City of Carmel,
Indiana and Clay Township of Hamilton County, Indiana" ("lnterlocal Agreement") entered into by and
between Owner and Clay Township, Indiana on July 26, 2002, as amended.
NOW, THEREFORE, in consideration of the foregoing Recitals, and the covenants and
conditions set forth hereinbelow, Owner and Manager enter into this Agreement and mutually agree as
follows:
ARTICLE I
Incorporation of Recitals
1.1The foregoing Recitals are hereby incorporated into and made apart of this Agreement.
ARTICLE II
Performance
2.1 Owner hereby agrees to engage Manager to manage the Real Estate and Manager hereby agrees
to accept the management of the Real Estate subject to the terms, conditions and limitations set
forth in any deeds, easement agreements and other instruments of record or otherwise made
known to Manager by Owner in writing, the terms and conditions set forth in the lnterlocal
Agreement and the terms and conditions of this Agreement.
2.2 Time isof the essence of this Agreement.
ARTICLE III
Term; Renewal
3.1 The term of this Agreement shall be thirty (30) years, beginning on January 1, 2023 (“Term”).
3.2 Subject to the termination provisions contained herein, this Agreement shall automatically renew
for additional terms of ten (10) years beginning on the expiration date ofthe immediately
preceding term. Such renewals shall be upon the same terms and conditions as are contained in
the Agreement for the initial term, as the same may be amended from time to time.
ARTICLE IV
Management Fee; Taxes and Assessments
4.1 Owner agrees to pay Manager amanagement fee of Ten Dollars ($10.00) for the management of
the Real Estate, the receipt and sufficiency of which is hereby acknowledged.
4.2 Owner shall pay all taxes and assessments on the Real Estate that become due and payable
during the Term or any extension thereof.
ARTICLE V
Insurance
5.1 Manager agrees to obtain, and to keep in force throughout the Term and/or any extension
thereof, at Manager's sole expense, commercial general liability insurance ("Insurance") from an
insurer licensed to do business in Indiana, against any and allclaims for personal injury
including bodily injury and death) and/or property damage occurring on the Real Estate. The
Insurance shall afford coverage, in an amount of not less than Five Hundred Thousand Dollars
500,000.00) with respect to the personal injury of any one person, inan amount of not less than
One Million Dollars ($1,000,000.00) per occurrence involving two or more persons, and in an
amount of not less than One Hundred Thousand Dollars ($100,000.00) per occurrence involving
property damage.
5.2 Manager shall cause its insurers to name Owner as an additional insured on all Insurance
policies, shall promptly provide Owner, upon request, with a certificate ofinsurance that
evidences such coverage, and shall provide that such insurance policies shall not be canceled
without thirty (30) days prior notice to Owner.
ARTICLE VI
Use of Real Estate
6.1 Manager agrees that the Real Estate will be used and managed by it only as a park, greenway and
natural area for the benefit of the general public, whereon lawful recreational activities such as,
but not limited to, walking, running, roller skating, bicycling, roller blading and related parkand
recreational activities may take place under Manager's written rules and regulations and
Manager's control, for the Term and any extensions thereof.
6.2 Manager agrees to submit to Owner for Owner's approval a written master plan ("Master Plan")
for making such improvements to the Real Estate as are necessary for effective management and
public use, for maintaining order on the Real Estate and for maintaining the Real Estate in a safe,
neat and attractive state pursuant to and in compliance with all applicable laws and with all
covenants, restrictions, obligations and limitations agreed to by Owner at the time of Owner's
purchase or acceptance of a property interest in the Real Estate. Should Owner fail to act onthe
Master Plan within ninety (90) calendar days from the receipt of same by Owner, with acopy of
same contemporaneously provided to the Carmel Corporation Counsel, the Master Plan shall be
deemed approved. The Master Plan, once approved by the parties, cannot be changed, modified
or superseded without the express prior written consent of Owner.
6.3 Manager agrees to comply with all applicable laws, orders, rules and regulations of any federal,
state or municipal government, court, department or agency that is applicable to the Real Estate
and/or toManager's use thereof.
6.4 Manager agrees to accept the Real Estate "as-is” in itspresent condition, and to make, at its sole
expense, such improvements as are required by Manager consistent with the Master Plan and all
applicable law.
6.5Owner agrees tocooperate with Manager to the extent that Manager must seek government
issued permits in order to fulfill itsobligations and responsibilities under and pursuant to the
Agreement that require the authorization and approval of Owner.
6.6 Owner reserves the right to temporarily close any trail or park located on the Real Estate ifsuch
closure is necessary for the maintenance or repair of Owner’s facilities located thereon. For
routine maintenance orrepairs, Owner shall provide the Manager with seven (7) calendar days’
notice of the closure. Owner may immediately close any trail or park located on the Real Estate
to repair its facilities in the case of a bona fide emergency.
6.7 At the expiration of the Term and any extension(s) thereof, or upon the earlier termination of this
Agreement as provided herein, or upon Owner's otherwise lawful re-entry on the Real Estate,
Manager shall surrender the Real Estate to Owner in substantially the same condition that the
Real Estate was in at the beginning of the Term, normal wear and tear and such improvements
installed thereon and therein consistent with the approved Master Plan excepted.
6.8 Owner agrees that, if and so long as Manager keeps and substantially performs each material
term and condition herein imposed upon Manager, and if and so long as this Agreement is not
lawfully terminated, Manager shall quietly enjoy the Real Estate without hindrance or
molestation by Owner or any person lawfully claiming under Owner, subject to any property
rights or interests of others therein as set forth inany deed, easement agreement or other
instrument of record regarding the Real Estate and Owner’s obligations thereunder, as well as to
Owner’s rights, obligations and duties under law and this Agreement.
ARTICLE VII
Maintenance; Utilities
7.1 Manager agrees to keep the Real Estate reasonably clean, sanitary, safe, neat, attractive and free
from refuse at all times during the Term and any extension(s) thereof, to provide fireproof
containers for the storage of refuse thereon, and to arrange for the regular pickup ofsuch refuse,
all atManager's expense.
7.2 Manager agrees to pay all maintenance expenses related to Manager’s use or management of the
Real Estate, including, but not limited to, labor, machinery and equipment.
7.3 Manager agrees to pay all utility service and expenses associated with Manager’s use or
management of the Real Estate.
ARTICLE VIII
Liens
8.1 Manager agrees that it will not create nor by its own actions provide the basis for the creation or
continuance of any mechanic's, materialman's or other lien that encumbers the Real Estate. If
such a lien is created which encumbers the Real Estate and is not released or bonded over by
Manager within thirty (30) days of its attachment, the Owner shall have the right to pay such lien
or obtain such bond, all at Vendor’s sole cost and expense.
ARTICLE IX
Owner’s Right to Perform Work; Inspections
9.1 If Manager should, at any time during the Term or any extension thereof, fail to perform its
obligations under this Agreement, and shall not, upon ten (10) calendar days’ notice of such
default from Owner, fully cure same, Owner may supply the omitted performance. Any
reasonable expense incurred by Owner in so doing shall constitute an obligation of Manager
which shall be payable within sixty (60) calendar days of Manager's receipt of anitemized
invoice from Owner regarding same. Notwithstanding the foregoing, in the event of an
emergency, Owner shall beentitled toimmediately cure any default or perform any ofManager's
obligations hereunder at Manager's sole cost and expense.
9.2 Owner shall have the right, at any time and without demand or notice, to enter upon the Real
Estate for the purpose of determining whether Manager isperforming its obligations under this
Agreement, to comply with its obligations under and pursuant to the terms and conditions of any
deeds, easement agreements and other instruments of record asregards the Real Estate, or for
any other lawful purpose.
ARTICLE X
Indemnity
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, reasonable attorney fees, the Owner incurs
or issubject toon account of or asa result ofany bodily injury to, orthe 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, unless such
injury, death or damage is the result of Owner's negligent conduct or intentional action on the
Real Estate. This obligation shall survive the termination of this Agreement.
10.2 As between Owner and Manager, any property of either shall be kept, stored or maintained on or
in the Real Estate at such party's own risk and expense.
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, reasonable attorney fees, that 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 damages
arises, or is alleged to arise, out of Owner's use of, or actions on, the Real Estate, unless such
injury, death or damage is the result of Manager's negligent conduct or intentional action on the
Real Estate. This obligation shall survive the termination of this Agreement.
ARTICLE XI
Assignment
11.1 Manager shall not assign this Agreement without the prior written consent and agreement of
Owner.
ARTICLE XII
Default; Termination
12.1 In the event Manager repudiates, breaches or defaults under any of the terms or conditions of this
Agreement and does not correct such failure or breach within ten (10) calendar days (or such
shorter period of time as is commercially reasonable under the circumstances) after receipt of
written notice from Owner specifying such failure or breach, or becomes insolvent, isplaced
into receivership, makes a general assignment for the benefit of creditors or dissolves, each such
event constituting an event of default hereunder, Owner shall have the right to (1) terminate all
or any parts ofthis Agreement, without liability to Manger; and (2) exercise all other rights and
remedies available toOwner at law and/or in equity.
12.2 Notwithstanding anything to the contrary set forth herein, this Agreement shall immediately
terminate if the Interlocal Agreement is terminated.
12.3 Owner may terminate this Agreement at any time upon one hundred eighty (180) days written
notice prior to any January 1 of the Term, with such termination effective as of that January 1.
ARTICLE XIII
Notice
13.1 Any notice provided for in this Agreement will be sufficient if it is inwriting and is delivered by
postage prepaid U.S. certified mail, return receipt requested, or by personal service, to the party
to benotified at the address specified herein:
If to Owner: City of Carmel AND City of Carmel
Office of the Mayor Office of Corporation Counsel
One Civic Square One Civic Square
Carmel, Indiana 46032 Carmel, Indiana 46032
If to Manager: Carmel Clay Parks & Recreation
th1411E. 116 Street
Carmel, IN 46032
Attn: Michael Klitzing
ARTICLE XIV
Miscellaneous
14.1 The failure of either party to require performance by the other of any provision of this
Agreement shall not affect the right of such party to require such performance at any time
thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement
constitute a waiver of any succeeding breach of the same or any other provision hereof.
14.2 Notwithstanding any other provision of this Agreement, this Agreement is subject to all
easements and other restrictions of record regarding the Real Estate, and to Owner'sgeneral
police powers, Home Rule rights and obligations, and all of Owner's other lawful rights,
obligations, privileges and powers.
14.3 This Agreement may only be modified by written amendment executed by both parties hereto.
14.4This Agreement is the joint work of both parties and shall not bestrictly construed against either
party but shall beinterpreted in a fair and reasonable manner so as to best fulfill the intent and
purpose of the parties hereto.
14.5 All headings and sections of this Agreement are inserted for convenience only and do not limit,
expand or otherwise alter the meaning of any provision hereof.
14.6 The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect toall of the covenants, terms, warranties and
obligations set forth in Agreement.
14.7The parties warrant that they have read this Agreement and understand it, have had the
opportunity to obtain legal advice and assistance of counsel throughout the negotiation of same,
and enter into this Agreement freely, voluntarily and without any duress, undue influence or
coercion.
14.8This Agreement shall be construed in accordance with and governed by the laws of the State of
Indiana, except for its conflict of laws provisions. The parties agree that, in the event alawsuit is
filed hereunder, they waive their right toa jury trial, agree tofile any such lawsuit in an
appropriate court inHamilton County, Indiana, only, and agree that such court is the appropriate
venue for and has jurisdiction over same.
14.9 The parties hereto represent and warrant that they are authorized to enter into this Agreement and
that the person(s) executing this Agreement have the authority to bind the party which they
represent.
14.10 If any term of this Agreement invalid or unenforceable under any statute, regulation, ordinance,
executive order or other rule of law, such term shall be deemed reformed or deleted only to the
extent necessary tocomply with same, and the remaining provisions ofthis Agreement shall
remain in full force and effect.
14.11 This Agreement, together with all exhibits attached hereto and all matters incorporated by
reference herein, constitutes the entire agreement between Owner and Manager with respect to
the subject matter hereof, and supersedes all prior oral or written representations and agreements
regarding same.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA CARMEL CLAY BOARD OF
PARKS & RECREATION
by and through its Board of Public
Works and Safety
By: By:
James Brainard, Presiding Officer Authorized Signature
Date:
Printed Name
Mary Ann Burke, Member
Date:
Title
Date:
Lori S. Watson, Member
Date:
ATTEST:
Sue Wolfgang, Clerk
Date:
CzTfshfzHsfdivlijobu4;37qn-Nbz42-3133
Customer. Customer may present Zayo with avalid exemption certificate (in aform reasonably acceptable to Zayo) eliminating Zayo’s
liability to pay certain Taxes and Other Fees and Surcharges; Zayo will give effect thereto prospectively.
2.4 Portability. Customer may terminate anexisting Offering (the “Original Offering”) and make aone-time request that such
Offering be replaced by anew Offering (“Replacement Offering”), and Customer will not incur any early termination liability with respect
to the Original Offering, as long as: (a) the Original Offering is On-Net, (b) the Original Offering has been in-service for at least twelve
12) months of the Order Term, and (c) Customer submits, and Zayo accepts, a Customer Order for the Replacement Offering that
complies with the requirements of this provision (the “Replacement Customer Order”). The Replacement Customer Order shall reflect (i)
an Order Term of at least one (1) additional year beyond the expiration date of theOrder Term forthe Original Offering, (ii) an MRC at
least equal to theMRC of the Original Offering and (iii) an NRC to implement the Replacement Offering (which may include costs incurred
but notrecovered under the Original Offering). Customer may not terminate the Original Offering until commencement of the Replacement
Offering, and must provide Zayo at least thirty (30) days' written notice of disconnection prior to disconnection of theOriginal Offering.
Customer must pay all charges for the Original Offering through the disconnection date. “On-Net” means any Offering which connects
two locations to which Zayo isalready providing thesame type of Offering at the time of the Order and which is provisioned entirely on
Zayo facilities and does not include any third party services or special construction.
ARTICLE 3 - DEFAULT
IfCustomer fails to make any payment due under the Agreement by the Due Date, and such failure continues for five days afterreceiving
notice of the failure to make payment, orifaParty fails to cure any material breach of any term of the Agreement within 30 days of
receiving notice of the breach from the other Party, then the non-breaching Party may: (a) terminate the Agreement inwhole or inpart
and (b) subject to the liability limitations stated herein, pursue any available remedies at law or in equity.
ARTICLE 4 - LIABILITIES
4.1 Damage Limitations. Except for indemnity obligations arising under Section 4.4 or confidentiality obligations arising under
Section 5.1: (i) Zayo’stotal liability for any and all causes and claims whether based in contract, warranty, tort or otherwise shall be limited
to the lesser of (a) the actual direct damages sustained by Customer inconnection with the affected Customer Order and affected Access
or Service, or (b) anamount equivalent to the total MRC payable by Customer over the preceding three months for the Access orService
affected or ifthe claim arises prior to the Activation Date, an amount equivalent to the total MRC payable by Customer for the first three
months of the Order Term, and (ii) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES FOR LOST
PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF DATA, ANTICIPATED SAVINGS OR COST OF PURCHASING
REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT. Notwithstanding
anything to the contrary, Customer’ssole and exclusive remedy for any non-performance, defect or failure to deliver the Access or Service
are the performance credits and/or other remedies expressly stated in the relevant Customer Schedule,
4.2 No Warranty. ZAYO MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR
BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE.
4.3 No Liability for Certain Actions. Zayo exercises no control over and isnot responsible for the content of any information
transmitted or received through the use of the Access or the Services. Other than as expressly stated in the Agreement, Customer shall
be solely responsible for all of the security and confidentiality of information it transmits using theAccess or Service.
4.4 Indemnification. Each Party (an “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, its directors,
officers, employees, agents, contractors, successors and assigns (“Indemnified Party”) harmless from and against all losses, damages,
costs, expenses and liabilities (including reasonable attorney’sfees and expenses) incurred by such Indemnified Party arising from any
third party claims relating to: (i) any physical damage to tangible property, or personal injury or death, or (ii) infringement or
misappropriation of such third party’sintellectual property right, in each case caused bythe gross negligence or willful misconduct of the
Indemnifying Party, provided, however, that Zayo is not obligated toindemnify Customer, and Customer shall defend and indemnify Zayo
as an Indemnified Party, for any claims or actions commenced by any third party, including end users, arising from or in connection with
goods or services provided by Customer that incorporate any of the Access or Services.
ARTICLE 5 – MISCELLANEOUS PROVISIONS
Master Customer Agreement (Ver. 10.22.2021)
Confidential andProprietary Page 2of5
5.1 Confidentiality. Information or documentation exchanged between theParties inperforming this Agreement, including the terms
of this Agreement, are subject to the terms of any non-disclosure agreement in effect between the Parties, and ifnone, the Parties agree
to keep any such information which is of aconfidential nature confidential and not disclose such information to third parties (other than to
vendors, ifneeded to perform under this Agreement).
5.2 Force Majeure. Neither Party shall beliable, nor shall any credit allowance or other remedy be extended, forany failure or
hindrance of performance hereunder due to causes beyond its reasonable control. The Party claiming relief under this Section shall
notify the other Party of the occurrence or existence of the event and of the termination of such event.
5.3 Subject to Laws. Each Party is responsible for complying with laws and regulations applicable toit, including but not limited to
applicable: (a) federal, state and local laws; (b) regulations, rulings and orders ofgovernment agencies; (c) data protection legislation; (d)
laws, statutes, regulations and codes relating to anti-bribery and anti-corruption; and (e) import, export and economic sanction laws and
regulations. Neither Party shall use the Access or Services for any unlawful purposes.
5.4 Governing Law; Venue; Prevailing Party. The Agreement shall be governed by and construed in accordance with thelaws of
Indiana, without giving effect to any conflict oflaw principles. The United Nations Convention on Contracts for the International Sale of
Goods does not apply. Ifsuit is brought or an attorney is retained by either party to enforce the terms of the Agreement or to collect any
money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and related expenses incurred in connection therewith.
5.5 Notices. Notices under this MCA shall be inwriting and delivered by electronic mail orcertified mail, return receipt requested,
or by anationally recognized courier to the persons whose names and business addresses appear below, and such notice shall be
effective on the date of receipt, or refusal of delivery, by the receiving Party. In lieu of the foregoing notice requirement, if Customer
is disconnecting Access or discontinuing Service(s) of any type for any reason, Customer must submit the disconnection
request through the form located at https://www.zayo.com/disconnectservice/
If to Zayo: If to Customer:
Zayo Group, LLC City of Carmel, IN
Attn: General Counsel, Legal Attn: Carmel Information and Communication
th182130 Street, Unit A Systems
Boulder, CO 80301 10701 N. College Avenue, Suite A
Email: legal@zayo.com Carmel, IN 46280
Billing Disputes: With acopy to:
Zayo Group, LLC: Carmel Office of Corporation Counsel
Attn: Accounts Receivable One Civic Square
th182130 Street, Unit A Carmel, IN 46032
Boulder, CO 80301
Email: customerservice@zayo.com
5.6 Assignment. Neither Party shall transfer or assign, voluntarily orby operation of law orotherwise, its
obligations under the Agreement without the prior written consent of theother party, except no such consent shall be
required in theevent of amerger, reorganization, consolidation or sale of substantially all of the Party’s assets or business
in which case the assigning party shall provide notice to the non-assigning Party; provided, however, that Customer may
only transfer or assign under this provision ifits account balance with Zayo is current. Zayo may assign inwhole or inpart
the Agreement or any of itsrights and obligations hereunder to any Zayo Affiliate without prior notice to Customer. The
Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
5.7 No Third Party Beneficiaries; Relationship and Counterparts. The Agreement is not intended for, nor shall
itbe for thebenefit of or enforceable by, any third party or person notaParty hereto, including without limitation, end users.
The Agreement does not create a partnership, joint venture or agency relationship between the Parties. Neither Party shall
have any authority to bind theother Party to any agreement, understanding or other instrument, in any manner whatsoever.
The Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.
The Agreement may be executed via arecognized electronic signature service and/or signed, scanned and emailed to
Zayo, and any such signatures shall betreated as original signatures.
5.8 Entire Agreement; Amendment. The Agreement constitutes the entire and final agreement and
understanding between the Parties, expressed or implied, with respect to the Access and Services ordered after the
Master Customer Agreement (Ver. 10.22.2021)
Confidential andProprietary Page 3of5
Effective Date and supersedes allother prior or contemporaneous representations, understandings or agreements. No
alteration or variation ofthe terms of any provision shall be valid unless made inwriting and signed by the Parties. Ifany
provision of the Agreement shall be held to beinvalid or unenforceable, the remaining provisions of the Agreement shall be
unimpaired and shall remain in effect and be binding upon the Parties. No course of dealing and no failure toexercise any
right hereunder shall be construed as awaiver of any provision hereof.
ARTICLE 6 – CUSTOMER SPECIFIC PROVISIONS
6.1 Liens. Zayo shall not cause or permit the filing of any lien on any of Customer’sproperty. In the event any
such lien is filed and Zayo fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
Customer shall have the right to pay such lien or obtain such bond, all at Zayo’ssole cost and expense.
6.2 Nondiscrimination. Zayo represents and warrants that itand all of its officers, employees, agents,
contractors and sub-contractors shall comply with alllaws ofthe United States, the State of Indiana and the City of
Carmel prohibiting discrimination against any employee, applicant for employment or other person in the provision of
any goods and services provided under this Agreement 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.
6.3 No Implied Waiver. The failure of either Party to require performance by the other of any provision of the
Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the
waiver by any party of a breach of any provision of the Agreement constitute awaiver of any succeeding breach of the
same or any other provision hereof.
6.4 Iran Certification. Pursuant to I.C. § 5-22-16.5, Zayo shall certify that, in signing this Agreement, itdoes not
engage in investment activities within the Country of Iran.
6.5 E-Verify. Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is
incorporated herein by this reference (the “Indiana E-Verify Law”), Zayo is required to enroll in and verify the work
eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein
asExhibit A, affirming that itis enrolled and participating in the E-Verify program and does not knowingly employ
unauthorized aliens. In support of the Affidavit, Zayo shall provide Customer with documentation indicating that ithas
enrolled and is participating in the E-Verify program. Should Zayo subcontract for the performance of any work under
and pursuant to this Agreement, itshall fully comply with theIndiana E-Verify Law as regards each such sub-contractor.
Should Zayo or any sub-contractor violate theIndiana E-Verify law, Customer may require acure of such violation and
thereafter, ifno timely cure isperformed, terminate this Agreement inaccordance with either the provisions hereof or
those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-Verify
program cease to exist.
6.6 Non-Appropriation. In theevent the funds from Customer’slegislative body foraparticular budget year are
not appropriated for Customer Orders placed under this Agreement, Customer, upon providing written notice to Zayo
shall have the right to terminate the affected Customer Orders at theend ofeach fiscal year without further obligation
on the part of either Party.
6.7 Required Disclosure. In addition to the exceptions to disclosing of Confidential Information listed in Section
5.1above, Customer, upon consulting and providing notice to Zayo, may disclose such Confidential Information ifsuch
disclosure is required by any federal or state law.
6.8 Consultation Prior To Legal Action. Prior to filing any legal action, the Parties agree to have good faith
consultations, and each be given an opportunity to correct any such default as outlined in this Agreement.
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Confidential andProprietary Page 2of5
ZAYO GROUP, LLC CITY OF CARMEL, INDIANA, by and through itsBoard of
Public Works and Safety
Signature: Signature:
Name: Name: James Brainard, Presiding Officer
Title: __________________________________ Date: ______________________________________
FID/TIN: 26-2012549
Name: Mary Ann Burke, Member
Date: ______________________________________
Name: Lori S. Watson, Member
Date: ______________________________________
ATTEST:
Sue Wolgang, Clerk
Date: ______________________________________
Master Customer Agreement (Ver. 10.22.2021)
Confidential andProprietary Page 3of5
CUSTOMER SCHEDULE
Ethernet, IP, & WANs
This Ethernet, IP, and WANs Customer Schedule (“Customer Schedule”) dated MONTH DAY, 20YR, is subject to, and made apart of,
that Master Customer Agreement or Master Service Agreement (“MCA” or “Master Customer Agreement”) dated MONTH DAY, 20 YR
entered into between the undersigned Parties. Zayo owns and operates fiber networks and other related telecommunications facilities
and is in the business of providing certain Ethernet, IP, and WANs connectivity offerings (each, an “Offering”, collectively, "Offerings").
Capitalized terms not defined herein will have the meaning ascribed to such terms in the MCA.
1. DEFINITIONS. The following additional definitions shall apply to Offerings:
1.1 95th Percentile Calculation means the calculation method used to measure Bandwidth usage for Customer Orders which
specify Burst Bandwidth. Samples of average Bandwidth utilization rates of both inbound and outbound traffic from Customer
port(s) are collected in five (5) minute intervals over acalendar month. The higher of such samples (Inbound or Outbound)
are placed on alist and sorted from highest to lowest in amount of Mbps. The highest five percent (5%) of samples are
discarded and the next highest sample is chosen to represent the 95th percentile calculation for that month.
1.2 Allocated MRC means, for a multipoint Offering, aportion of MRC allocated by Offering and/or each Customer location as
specified onaCustomer Order, and if notso specified in aCustomer Order then prorated based on the number of locations
associated with the Offering.
1.3 Bandwidth means the amount of data (quantified as Mbps (“M”) or Gbps (“G”)) made available to Customer asspecified in
aCustomer Order, or in theevent of usage based billing, the amount of data actually transmitted by Customer’sEquipment.
1.4 Bandwidth Commitment means the Customer’scommitment to pay for a certain level of Bandwidth on amonthly basis.
Customer agrees to pay the MRC specified on the Customer Order as aminimum monthly charge regardless of actual usage.
Any applicable Bandwidth Commitment will be specified on aCustomer Order.
th1.5 Burst Bandwidth means the amount ofBandwidth usage, based on the 95 Percentile Calculation, in excess of aBandwidth
Commitment. Any usage in excess of theBandwidth Commitment will result in ausage charge at the burst rate identified in
ththeCustomerOrder, based on the 95 Percentile Calculation. Usage charges are billed inarrears representing excess usage
for the prior month. Burst Bandwidth must be specified on aCustomer Order to be applicable.
1.6 Demarcation Point means the interface port where Zayo hands off service to Customer unless otherwise specified on a
Customer Order.
1.7 Diverse Offering means an Offering designed to reduce points of failure by maintaining separation of paths, routes or
equipment. Zayo offers avariety of diverse solutions. The Customer Order for such Offering shall specifically state that such
Offering is aDiverse Offering and will include the type of diversity applicable to such Offering.
1.8 NNI means “Network-to-Network Interface” and is aninterface used to interconnect acustomer’s network to Zayo’snetwork.
1.9 Off-Net means any Offering which does notmeet the definition of On-Net in Section 1.10.
1.10 On-Net means any Offering which connects two locations to which Zayo is already providing the same type of Offering at
the time of the Customer Order and which is provisioned entirely on Zayo facilities and does not include any Third Party
Offerings (as defined herein) or special construction.
1.11 Protected Offering means an Offering which includes aprotection scheme that allows traffic to be rerouted inthe event of
afiber cut orequipment failure. For an Offering to be deemed aProtected Offering hereunder, the Customer Order for such
Offering shall specifically state that such Offering is a Protected Offering.
1.12 Offering Element means each Offering element set forth in Section 6for which aPerformance Level Target is prescribed
e.g. Availability and Latency).
1.13 Third Party Cloud Provider (TPCP) means anon-Zayo entity offering acloud-based platform, infrastructure or application
to which Customer desires to interconnect an Offering, and with which Customer has a direct commercial relationship.
1.14 UNI means “User Network Interface” and is an interface used to interconnect acustomer’snetwork to Zayo’snetwork.
1.15 Unprotected Offering means an Offering which does not include aprotection scheme that allows traffic tobe rerouted in
the event of afiber cut or equipment failure. Any Offering not expressly designated as a Protected Offering on the applicable
Customer Order shall be deemed an Unprotected Offering.
2. ACCEPTABLE USE POLICY. All Offerings are subject to and conditioned upon Zayo’sAcceptable Use Policy published at
www.zayo.com, which is hereby incorporated into this Customer Schedule.
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3. OFFERING DESCRIPTIONS
3.1 IP Transit/DIA Offerings
a) IP Transit (“IP Transit”) provides multiservice 1G, 10G and/or 100G ports (minimum 1G commit for a10G port) available
only in designated Zayo IP Points of Presence (“POP”). Customer provides cross-connect within POP.
b) Dedicated Internet Access (“DIA”) is connectivity and access to the Internet via Zayo’speering arrangements with
various Internet service providers. DIA is provided from aZayo POP to acustomer location.
c) Additional Features: Customer may request related services, including additional IP addresses, aggregated billing, Burst
Bandwidth, primary and secondary domain name service (“DNS”), or border gateway protocol (“BGP”) services.
d) DDoS Protection Offering. Distributed denial of service (“DDoS”) attacks may from time to time affect the Offering that
Zayo provides to Customer by flooding Customer’ssystem with incoming traffic. Zayo’sDDoS protection Offering (“DDoS
Protection”) is an optional service which attempts to mitigate DDoS attacks in accordance with thefollowing procedure:
1. Prior to the Activation Date, Customer and Zayo shall agree on alist of IPaddresses to which the DDoS
Protection applies;
2. Upon service activation, Zayo will perform ananalysis of Customer’snormal Internet traffic and use this traffic
profile to identify potential anomalies that could indicate aDDoS attack; and
3. Upon detection of anomaly that is indicative of aDDoS attack, Zayo will notify pre-determined Customer
contacts that traffic patterns indicate aDDoS attack.
4. DDoS Protection includes managed re-routing of Customer’sDDoS-impacted traffic to one of Zayo’sglobal
scrubbing facilities which attempts to identify and remove the offending traffic; and
5. DDoS Protection does not include: load balancing of traffic or of the Offerings; permanent archival/storage of
log files; forensics or investigations; legal case preparation or PR incident support; security consulting
services; disaster recovery planning; or permanent filtering/cleaning of traffic.
6. DDoS Unpredictability - Customer acknowledges and agrees that: (1) due to the unpredictable nature of DDoS
attacks, there is no guarantee or warranty hereunder concerning the ability of the DDoS Protection to mitigate
or defeat any DDoS attack; and (2) Zayo shall have no liability whatsoever for damages related to lost data,
lost profits or lost revenues, even ifZayo has been advised ofthe possibility of such damages, or damages
which result from any failure or inability of theDDoS Protection to mitigate or defeat any one or more DDoS
attacks.
7. Special Terms for Sustained DDoS Attack - Zayo may suspend or blackhole Customer’s traffic without notice
if Customer suffers a sustained DDoS attack whereby Customer’s traffic materially impacts Zayo’snetwork.
3.2 Ethernet LAN (“ELAN”) is alayer 2service comprised of aconnection to aZayo POP providing multipoint-to-multipoint
Ethernet transport between Customer locations. ELAN Offering can support unicast traffic and alimited amount of multicast
or broadcast traffic. ELAN can beprovided with QoS which allows Customer to differentiate traffic within the ELAN and on
the Zayo network.
3.3 Ethernet (“Ethernet”) is a layer 2service that provides dedicated or shared point-to-point or point-to-multipoint connectivity
for transport of voice, data, video orother forms ofcommunications traffic. Ethernet Offerings meet IEEE 802.3standards
and uses 802.1Q VLAN tagging and stacking to support certain configurations. Ethernet Offerings generally follow the Metro
Ethernet Forum definitions of Ethernet Private Line (“EPL”) and Ethernet Virtual Private Line (“EVPL”) network configurations
and can be purchased with the following configurations:
a) EPL: Metro orintercity Offering comprised ofaUNI at each Customer site connected viaanEthernet virtual circuit (“EVC”)
providing point-to-point Ethernet transport.
b) EVPL – UNI: A UNI handoff which connects to an NNI via an EVC.
c) EVPL – NNI: A NNI handoff which aggregates multiple EVC Offerings.
3.4 IP for Virtual Private Networks (“IP-VPN”) is alayer 3service leveraging Zayo’sIP network. IP-VPN provides avirtual
private network (“VPN”) that supports the interconnection of multiple Customer locations through Zayo’smultiprotocol label
switching (“MPLS”) network backbone. IP-VPN is delivered to the Customer premises over On-Net or Off-Net facilities, and
distributed as aLayer 3Internet Protocol (“IP”) service from the Customer premises equipment (“CPE”) router. IP-VPN can
be provided with On-Net QoS which allows Customer to differentiate traffic within the IP-VPN Offering and on theZayo
network.
a) Management Type: IP-VPNOffering may be available with the following managed service options on aper-location basis.
1. Unmanaged: Access to utilization reporting in theTranzact portal.
2. Basic Management: Access to utilization and performance reporting in the Tranzact portal and Offering may
be offered with Proactive Notification (see Section 3.7) as an optional service.
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3. Advanced Management: Includes Basic Management features plus router configuration, change
management, and hardware support.
b) IP-VPN Managed Router: Customer may request Zayo provide aCPE router to enable the following Zayo-managed
configurations. Advanced Management is required forthis option.
1. Customer edge routing protocol enablement
2. Dynamic Host Configuration Protocol (DHCP) server or DHCP relay
3. Access Control Lists (ACL)
4. Static routes
5. Secondary IPaddress
6. Read Only Simple Network Management Protocol (ROSNMP) access
7. Netflow to Customer collector
3.5 Software-Defined Wide Area Network (“SD-WAN”) is avirtual overlay to IP-VPN or DIA which provides a fully-meshed,
private VPN service. SD-WAN is amanaged service using controllers, network gateways, and Zayo-provided hardware and
software at the Customer premises. SD-WAN may beconfigurable with QoS and application level traffic steering and includes
an online portal. Off-Net access methods for SD-WAN may include “bring-your-own-Internet-access” over wired or wireless
connectivity. After SD-WAN activation, Customer may submit change requests to Zayo or request access to self-manage
configurations via the portal. Zayo will provide up to five (5) configuration changes per network, per month, subject to
availability, at no additional charge, however, Zayo may charge Customer for excessive changes or corrections.
3.6 CloudLink is a Layer 2or Layer 3Offering providing direct private connectivity to aTPCSP network interconnect point of
presence. While on the Zayo network, traffic destined for the TPCSP, or received from theCSP does not traverse the
public Internet and travels across aprivate customer circuit. CloudLink can be used on avariety of transporting methods
including WAN, Ethernet and Wavelengths. CloudLink performance level metrics are based onthe transportation
method. The performance level metrics for Cloudlink using Wavelengths are addressed in that specific Customer
Schedule for Wavelengths Offerings.
a) WWAN CloudLink is an Offering that enables Customer to extend their IP-VPN, SD-WAN, or ELAN to aTPCP in order to
share TPCP services to one (1) or more Customer locations on the IP-VPN, SD-WAN, or ELAN.
b) BGP Management: Customer must establish adirect relationship with each TPCP and is solely responsible forall charges
or costs from the TPCP. Customer is responsible for: (1) all BGP sessions connecting to and within the TPCP network; and
2) all public and private addresses required by the TPCP.
c) Managed IP-VPN Option: IP-VPNconnectivity for CloudLink mayinclude Zayo-provided managed routers at the Customer
premises. This option may include Network Address Translation (NAT) for the integration of public TPCP offerings.
4. COMPONENTS AND INSTALLATION.
4.1 Zayo Components. Zayo, or its agent, may provide, install, maintain, repair, operate and control Zayo’scomponents and
equipment (“Zayo Components”). The Zayo Components shall remain the sole and exclusive property of Zayo, and nothing
contained herein shall give or convey to Customer, or any other person, any ownership right, title orinterest whatsoever in
the Zayo Components (other than the access rights included within an Offering), notwithstanding that such Zayo Components
may be, or become, attached to, or embedded in, realty. Customer shall not tamper with, remove or conceal any identifying
plates, tags or labels identifying Zayo’sownership interest in the Zayo Components. Customer shall not adjust, align, attempt
to repair, relocate or remove the Zayo Components, except as expressly authorized in writing by Zayo. Customer shall be
liable for any loss of or damage to the Zayo Components caused by Customer’snegligence, intentional acts, orunauthorized
maintenance and shall reimburse Zayo for the same within thirty (30) days after receipt byCustomer of arequest for
reimbursement. Customer, at itssole cost and expense, shall be required to obtain space and power to support the Zayo
Components for the Offering for the duration of the Order Term.
4.2 Access and Customer Premises Obligations. Customer, at its sole cost and expense, shall provide Zayo with all
necessary information and access to all applicable Customer locations for purposes of providing the Offerings, including
installation, maintenance, and repair of Zayo Components on Customer premises. For purposes of the preceding sentence,
access” shall include without limitation any necessary license(s) to access, occupy and conduct telecommunication
operations within each respective building and or property for the duration of the Order Term (including any necessary rights
for Zayo to enter and access each building, and for providing all necessary cable pathways, building access and/or occupancy
fees, riser fees, cross-connects and cross-connect fees, coordination at any third party owned location, and, where
applicable, necessary space for Zayo’sfiber termination panel). However, notwithstanding Customer’sforegoing
responsibility, if Zayo is required by athird party to obtain and maintain any such license to access thebuilding or property,
Customer agrees toreimburse Zayo for its costs related to obtaining and maintaining such licenses during the Order Term.
Zayo shall provide reasonable notice under the circumstances to Customer prior to entering Customer’spoint of presence to
install, maintain or repair any of the Zayo Components. Customer will provide asafe place to work and comply with all
applicable laws regarding the working conditions on the Customer premises.
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4.3 Customer Equipment. Customer is responsible, at its sole cost and expense, for connecting to the Demarcation Point
specified in the Customer Order. Components, equipment and operations beyond the Demarcation Point and/or
interconnection between Zayo’sfacilities and terminal components and the wiring at the Demarcation Point shall be the
responsibility of Customer (“Customer Equipment”). Customer must procure and maintain, at itssole cost and expense,
Customer Equipment which is technically compatible with the Offering and the Zayo network. Zayo shall have noobligation
to install, maintain or repair any non-Zayo components orequipment, including any Customer Equipment. If, on responding
to aCustomer-initiated service call, Zayo reasonably determines that the cause of the deficiency was afailure, malfunction
or the inadequacy of components or equipment other than the Zayo Components, Customer shall compensate Zayo for
actual time and materials expended during theservice call.
5. SERVICE REQUESTS AND DELIVERY.
5.1 Acceptance and Projected Activation Date. Within five (5) business days of Zayo’s acknowledgment to Customer of
receipt of aCustomer Order for On-Net Offerings, or within five (5) business days after Zayo’sreceipt ofits Off-Net provider’s
projected service activation date for Off-Net Offerings, Zayo will notify Customer (in writing or electronically) of its acceptance
of suchCustomer Order (“Customer Order Acceptance”), at which time such Customer Order becomes abinding obligation
to purchase the Offerings therein, or rejection of such Customer Order, in which case Zayo will communicate to Customer
why itis unable to accept such Customer Order. Zayo may accept orreject any submitted Customer Order in its sole
discretion.
5.2 Firm Order Commitment Date. Unless the date by which Zayo estimates itwill turn over the Offering for Customer’suse
FOC Date”) isalready stated in aCustomer Order, Zayo will provide the FOC Date following submission of theCustomer
Order. For Off-Net Offerings, Zayo shall notify Customer of theFOC Date within two (2) business days after Zayo receives
an installation date from its Third Party Provider.
5.3 Offering Activation. After Zayo has determined that the Offering conforms to the relevant Customer Order, Zayo will notify
Customer that the Offering has been activated in accordance with the Customer Order and is available for use by Customer
Offering Activation Notice”). The “Activation Date” shall be theearlier of (i) the date onwhich Customer begins using
the Offering for any purpose other than testing; or (ii) the date that Zayo has sent the Offering Activation Notice to Customer.
Customer shall have five (5) days following the Activation Date in which to notify Zayo that itis rejecting theOffering because
the Offering does not conform to the Customer Order. IfCustomer has notified Zayo within such five (5)) day period that the
Offering does not conform to the Customer Order, then Zayo shall take such steps reasonably necessary to conform the
Offering to the Customer Order, at which time Zayo shall issue anew Offering Activation Notice and theCustomer acceptance
process above shall be repeated. Ifthe Activation Dateis delayed asaresult of Customer’sfailure to meet its responsibilities
under the MCA or this Customer Schedule, the Activation Date will bedeemed to bethe later of (a) the FOC Date or (b) the
date that Zayo has completed its tasks to deliver the Offering to the best of its ability.
5.4 Incrementally Delivered Offerings. Unless otherwise specified in aCustomer Order, for individually delivered Offerings,
Zayo may incrementally deliver when ready, which may result in different Activation Dates for such incrementally delivered
Offerings. For multipoint Offerings, Zayo may incrementally deliver an Offering to each Customer location when ready, and
the Order Term for such incrementally delivered multipoint Offerings shall begin onthe Activation Date of the first location
and/or circuit delivered and shall end after the period specified as the Order Term from theActivation Dateof the last location
and/or circuit delivered. Unless otherwise set forth in aCustomer Order, the charges associated with adelivered Offering
will be based upon the Allocated MRC. Any Bandwidth Commitment for an incrementally delivered service will be
proportionally reduced to reflect the number of locations incrementally delivered out ofthe total number of locations included
under such Bandwidth Commitment and Burst Bandwidth will be determined byusing thelevel then in effect as of the last
day ofeach calendar month. For all multipoint Offerings, Outage Credits shall be granted only to affected Customer locations
based on Allocated MRC.
6. PERFORMANCE LEVEL TARGETS
6.1 Availability: For IP-VPN, ELAN, CloudLink, SD-WAN, and Ethernet, “Availability” means the percentage of time that a
Customer location is connected to and can be reached by one or more other Customer locations on the same Customer
network. For DIA and IP Transit, Availability means the percentage of time aCustomer location can access the Internet. Ifthe
Offering is unavailable, measurement of the unavailable period begins when aZayo trouble ticket is opened and is calculated
on acalendar month basis. The Offering Credit to which Customer may be entitled is ten percent (10%) of Allocated MRC for
each two hour period that the Offering is unavailable following the Performance Level Target set forth below. Outage Credits
are available for On-Net Offerings as described above. Outage Credits for Off-Net Offerings are passed through based on
credits received from the underlying Off-Net provider.
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Availability
Configuration Performance LevelOfferingTarget
Unprotected 99.9%
IP-VPN Protected 99.95%
Diverse 99.99%
Unprotected 99.9%
ELAN Protected 99.95%
Diverse 99.99%
DIA Unprotected 99.9%
Protected 99.95%
IPTransit Unprotected 99.9%
Protected 99.95%
CloudLink Unprotected 99.9%
Protected 100%
On-Net, single CPE, single access 99.9%
SD-WAN On-Net/Off-Net, single CPE, dual diverse access 99.99%
On-Net/Off-Net, dualCPE, 3ormore diverse access 100%
Ethernet Unprotected 99.9%
Protected 99.95%
Diverse 99.99%
6.2 Latency (Inter-frame Delay): “Latency” means time ittakes for apacket of data to get from one Customer premises to a
separate Customer premises and back. The Performance Level Target for Latency isapplicable to packets that traverse a
single network and conform to theperformance attributes of the Offering. Latency Performance Level Targets are available
forOn-Net IP-VPN, ELAN, SD-WAN, and Ethernet Offerings and Outage Credits are calculated as ten percent (10%) of
Allocated MRC for each hour beyond two (2) hours that the Offering fails to meet the Performance Level Target.
Geography Performance LevelTarget
On-NetNational orregional 65msdistancesupto2500miles)
On-NetNational orregional 85msdistancesover2500miles)
On-NetGlobal < 300ms
6.3 Packet Delivery: “Packet Delivery” means the percentage of IP packets that are successfully transmitted across the
Customer’s network without loss, measured ineach direction between Zayo PEs serving the applicable Customer location.
The Performance Level Target for Packet Delivery is applicable to packets that traverse a single network and conform to the
performance attributes of theOffering. Packet Delivery Performance Level Targets areapplicable to On-Net IP-VPN, ELAN,
SD-WAN, and Ethernet Offerings and Outage Credits are calculated as ten percent (10%) ofAllocated MRC for each hour
beyond two (2) hours that the Offering fails to meet the Performance Level Target.
PerformanceGeographyLevelTarget
Distance up to2500miles 99.995%
Distance over2500 miles 99.95%
Global 99.9%
6.4 Jitter (Inter-frame Deviation): “Jitter” means the one-way variance in the arrival time of packets ataZayo PE serving the
applicable Customer location, given that the packets are of equal size and presented ataconstant rate, without error, and
within contracted delivery rates. Zayo calculates Jitter as an average of each direction’sjitter between two Customer locations.
Jitter Performance Level Targets are applicable to On-Net IP-VPN, ELAN, and SD-WAN Offerings and Outage Credits are
calculated as ten percent (10%) of Allocated MRC foreach hour beyond two (2) hours that the Offering fails to meet the
Performance Level Target.
Performance LevelCEtoCEDistanceTarget
Regional (intracontinental) < 3ms
Global (intercontinental) < 10ms
6.5 Quality of Offering: “QoS” means the option for prioritized traffic from applications that may compete for the same network
resources by assigning pre-determined levels of network priority tobandwidth. QoS Performance Level Targets are applicable
to On-Net Ethernet Offerings and Outage Credits are calculated as ten percent (10%) of Allocated MRC for each hour beyond
two (2) hours that the Offering fails to meet the Performance Level Target. The following levels of QoS may beavailable
QoS Classes”):
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PerformanceQoSClassesLevelTarget
Critical 99.8%
Preferred 99.7%
6.6 DDoS: Ifpurchased, Zayo willinitiate DDoS Protection (“Protection Initiation”) within fifteen (15) minutes after Zayoreceives
authorization from the Customer to begin protection and a trouble ticket is opened (“Authorization”). IfProtection Initiation
does not occur within fifteen (15) minutes of Authorization, then theOffering Credit is ten percent (10%) of Allocated MRC for
each subsequent fifteen (15) minute period that Protection Initiation has not yet occurred.
7 OUTAGE CREDITS.
7.1 Outage. Zayo will issue Outage Credits to Customer for circuits affected by interruptions in Offering for Offering Element
failures set forth in Section 6 (“Outage"); provided, however, that any such interruption or failure of an Offering Element will
not be deemed an Outage ifcaused by: (a) any act or omission of the Customer or itsEnd User Customers, or their
representatives, contractors, agents, authorized invitees, successors or assigns; (b) theconfiguration, failure or malfunction
of non-Zayo equipment or systems; (c) scheduled maintenance or planned enhancements orupgrades to Zayo'snetwork;
d) Zayo not being given reasonable access to the premises; (e) Customer exceeding the maximum capacity of aport
connection or any other rate limitation as set forth in the applicable Customer Order; or (f) aForce Majeure Event. Each of
the events described in Section 8shall be deemed an “Excused Outage.”
7.2 Outage Credit. Customer may be entitled to one ofthe service credits set forth in Section 6 (“Outage Credit”). For any
multipoint Offering, the Allocated MRC shall beused for purposes of calculating Outage Credit per the table in Section 6.
The duration of anOutage begins when Zayo records atrouble ticket number and ends when the Offering is restored or not
failing to meet the Performance Level Targets in Section 6 ("Outage Duration"). Outage Duration is applicable to specific
affected circuits and shall not be aggregated among circuits. Unless otherwise specified, the Performance Level Objectives
applicable toCloudLink Offerings shall be the Performance Level Objectives applicable to the underlying Offering used to
deliver such CloudLink Offering. In the event of an Outage during which Customer experiences multiple Offering Element
failures and/or Outages, the Outage Credits for each affected Offering Element shall not be aggregated; rather, the Outage
Credit shall be the greater of the Outage Credit applicable to any individual Offering Element in Section 6. The maximum
Outage Credit in acalendar month forany affected circuit shall not exceed 50% of the Allocated MRC for the affected circuit.
7.3 Chronic Outage: Customer may terminate theaffected On-Net Offering without incurring early termination charges if: (i) for
an On-Net Protected Offering, Customer experiences three (3) or more related Outages on such Offering, each with an
Outage Duration lasting more than one (1) hour in any thirty (30) day period; or (ii) for an On-Net Unprotected Offering,
Customer experiences three (3) ormore related Outages on such Offering, each with an Outage Duration lasting more than
eight (8) hours in any thirty (30) day period. In the event of an Outage during which Customer experiences multiple Offering
Element failures and/or Outages, the Outage Duration for each affected Offering Element shall not beaggregated; rather,
the Outage Duration used to calculate the applicable Outage Credit under Section 7.2above shall apply for purposes of
determining whether Customer is entitled to terminate the affected Offering under this Section. In order to exercise aright to
terminate under this Section, Customer must notify Zayo of its intent to terminate the affected Offering in writing within thirty
30) days after the event giving rise to aright of termination. Customer shall be deemed to have waived itsright toterminate
under this Section if itfails to provide the requisite notice within such thirty (30) day period. Zayo reserves the right torefuse
the foregoing termination right ifCustomer has any past-due balances. Notwithstanding the foregoing, Customer may not
terminate the affected Offering under this section ifZayo is able to cure (to Customer’s reasonable satisfaction) the issue(s)
giving rise to such Outages under this provision within thirty (30) calendar days of the chronic outage triggering event.
8 ISSUANCE OF CREDITS. In order to receive Outage Credit, Customer must (a) immediately report the Outage to the NCC and
open atrouble ticket and (b) make awritten request foran Outage Credit within thirty (30) calendar days following the end of the
month in which theOutageoccurred. Upon receipt of Customer’srequest, Zayo will investigate the claim under the terms described
in this Customer Schedule. Credits will be granted only if Customer has paid all outstanding invoices by the Due Dates
thereof. The issuance of credits pursuant to this Section and Customer’sright to terminate in accordance with Section 7.3above
are Customer'ssole remedies for any failure or non-performance of Offerings set forth in this Customer Schedule. Outage Credits
shall be deducted from the charges payable by Customer hereunder and shall be expressly indicated on the Customer invoice.
9 THIRD PARTY SERVICES. The Offerings may incorporate services provided by athird party (“Third Party Provider”), including,
but not limited to, interconnect services (collectively “Third Party Offerings”). The costs of Third Party Offerings will be reflected
in the applicable Customer Order provided that, following written notice to Customer, Zayo may adjust the rates for Offerings that
incorporate Third Party Offerings to reflect, without mark up, any increases incosts imposed onZayo forThird Party Offerings
after the effective date of the applicable Customer Order. The service-specific terms and performance metrics associated with
Third Party Offerings, including any available credits for non-performance or service degradation, are limited to Zayo’sterms with,
and credits collected from, the applicable Third Party Provider. IfCustomer cancels an Offering that incorporates Third Party
Offerings without cause prior to the expiration of theapplicable Order Term, Customer shall reimburse Zayo for any costs incurred
by Zayo to terminate such Third Party Offerings. Where aCustomer has requested adisconnect for an Offering for which an
Page 6of7
Ethernet, IP, andWANs Customer Schedule (Ver. 10.22.21)
Confidential andProprietary
CLERK 6-8-22
BPW 6-15-22
REVIEWED-APPROVED VIA EMAIL
CPD KEITH 6-3-22
CFD SUTTON 6-3-22
CRED BREWER 6-8-22
CITY OF CARMEL, INDIANA
INFORMATION
FACILITY REQUEST FORM
City Hall Caucus Room or Council Chambers
Name
Organization:
Phone Number:
Cell Number:
Email
Address
Organization Type:
Event/Use Purpose:
Event Date End Date
Number of People
Expected:
Set-Up Start time
Tear Down End Time
Event Start
time:
Event end
time:
GENERAL INFORMATION
Jim Grimes
Carmel Green Initiative
3177601052
3177601052
jgrimes977@gmail.com
City
Carmel
State / Province / Region
IN
Postal / Zip Code
46032
Country
US
Street Address
11421 Ralston Ave.
Address Line 2
Non-Profit Organization
Practice session for Carmel High School students speaking at the June 20th Council
meeting regarding Carmel Climate Action Plan.
6/14/2022 6/14/2022
10
02:00:00 PM
03:00:00 PM
02:00:00 PM 03:00:00 PM
ROOM REQUESTED CAUCUS ROOM
------------ 6/16/22 ----------- 6/16/22
- NO
Room may be divided into sections or can be one large room. Choose the size that you need. Seating capacity: 126
chairs only. Room has an 8.5 counter area with sink.
Room Set-Up
Other seating options:
Equipment needed:
Equipment not provided:
Computers or connection cords/electrical cords
Microphones are not available in the Caucus rooms.
Projector
Other:
How many?
Equipment needed:
Equipment not provided:
Computers or connection/electrical cords.
Other:
How many?
The traditional seating arrangement is Boardroom style.
1/3 side has four, 5-foot tables with 10 chairs
2/3 side has six, 5-foot tables with 30 chairs
Classroom
Theater (chairs only)
Projection screen
Are tables and/or chairs needed around periphery of room?
Yes
No
If you selected YES - please fill out the details below.
How many additional table/chairs are needed?
Note: Extra tables/chairs available: 34 chairs, eight 4-foot tables, six 6-foot tables.
ROOM REQUESTED COUNCIL CHAMBERS
Seating capacity: 140
Microphone(s) 13 available on dais, 1 at presenter's podium, 1 at clerk's desk
Dais
presenter's podium
Dais # and which ones
Projection Screen
Are tables and/or chairs needed around periphery of room?
Yes
No
If you selected YES - please fill out the details below.
How many additional table/chairs are needed?
Note: Extra tables/chairs available: 34 chairs, eight 4-foot tables, six 6-foot tables.
- YES
ACKNOWLEDGEMENT AND AGREEMENT
Mayor's Office
ACKNOWLEDGEMENT AND AGREEMENT
TO COMPLY WITH CITY FACILITY USE POLICY
I have read and understand the City of Carmel, Indiana ("City") Facility Use Policy and agree to be bound by all the terms
and conditions set forth therein.
I will leave the City facility I use in the same condition that it was immediately prior to my use thereof. I agree to pay for
any damage, repair or clean-up costs incurred by the City as a result of my use of a City facility.
I hereby certify that I, and the organization I represent, if applicable, agree to be bound by the City's Facility Use Policy and
by any addition conditions or restrictions placed upon my/our use of a City facility by the Board. I understand that the
Board has the right to deny, alter or revoke my request for the use of a City facility for any lawful reason. I and/or my
organization also agree to indemnify and hold harmless the City of Carmel and all of its directors, officers, employees,
agents and affiliates from any claims of whatever nature (whether foreseeable or not) arising from or in connection with this
Application for any damages, costs or expenses incurred directly or indirectly as a result of my/our use of the City-owned
facility and/or property.
*
GO TO SUBMIT TAB TO FINALIZE YOUR REQUEST
Carmel Green Initiative / Jim Grimes
Name of Organization/Applicant
Signature of Authorized Agent/Applicant
Jim Grimes
Printed Name and Title (If applicable)
11421 Ralston Ave, Carmel, IN 46032
Address of Organization/Applicant
6/6/2022
Date
CITY OF CARMEL USE ONLY
Approved this _____day of__________, 20
CITY OF CARMEL, INDIANA
By and Through its Board of Public Works and Safety
___________________________________
James Brainard, Presiding Officer
Date: ______________________________
___________________________________
Mary Ann Burke, Member
Date: ______________________________
___________________________________
Lori Watson, Member
Date: ______________________________
ATTEST:
______________________________
Sue Wolfgang, City Clerk
Date: ______________________________
Special Conditions:__________________________________________________________________
SUBMIT
CLERK 6/8/22
BPW 6/15/22
CFD SUTTON 6-6-22 OK
CPD COLLINS 6-6-22 OK
CRED BREWER/O'BRIEN 6-8-22 OK
REVIEWED-APPROVED VIA EMAIL
CLERK 6-8-22
BPW 6-15-22
REVIEWED-APPROVED VIA EMAIL
CPD KEITH 6-2-22
CFD SUTTON 6-2-22
CRED BREWER 6-8-22
CLERK 6-8-22
BPW 6-15-22
REVIEWED/APPROVED VIA EMAIL
CPD KEITH 6-3-22
CFD SUTTON 6-3-22
CRED BREWER 6-8-22
X
CLERK 6-8-22
BPW 6-15-22
REVIEWED-APPROVED VIA EMAIL
CPD COLLINS 6-6-22
CFD SUTTON 6-6-22
CRED BREWER 6-8-22
CLERK 6-8-22
BPW 6-15-22
REVIEWED-APPROVED VIA EMAIL
CPD KEITH 6-2-22
CFD SUTTON 6-2-22
CRED BREWER 6-8-22
CLERK 6-8-22
BPW 6-15-22
RETROACTIVE APPROVAL - MAYOR'S APPROVAL INCLUDED WITH THIS REQUEST
CPD KEITH 6-2-22 EVENT DATE 6-8-22
CFD SUTTON 6-2-22
CRED BREWER 6-8-22
City ofCarmel
BOARD OF PUBLIC WORKS & SAFETY
ACCEPTANCE OF DEDICATION & DEED OF PUBLIC RIGHTS-OF-WAY
WHEREAS, the foregoing Grantor having filed with the City ofCarmel, Indiana, an Indiana municipal
corporation ("City"), its Dedication and Deed of Public Rights-of-Way ofcertain real property
Property") to theCity for the purpose of establishing City rights-of-way;
WHEREAS, the City believes that said fee simple conveyance of the Property isdesirable, necessary
and inthe City'sbest interests; and
NOW THEREFORE, the City, by and through its Board ofPublic Works and Safety, hereby accepts
said Dedication and Deed, and orders that the Dedication and Deed ofPublic Rights-of-Way described
herein be recorded inthe Recorder'sOffice ofHamilton County, Indiana, and that the Property be, and
the same hereby is, declared open and dedicated tothe City.
SO ORDERED: CITY OF CARMEL BOARD OF PUBLIC WORKS & SAFETY
James Brainard, Presiding Officer
Date:
Mary Ann Burke, Member
Date:
Lori Watson, Member
Date:
ATTEST:
Sue Wolfgang, Clerk
Date:
3
STATE OF INDIANA )
SS:
COUNTY OF HAMILTON )
Before me, aNotary Public inand for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and LORI WATSON, byme known, and byme known tobethe
Members of theCity ofCarmel Board of Public Works and Safety, and SUEWOLFGANG, Clerk ofTHE
CITY OF CARMEL, who acknowledged the execution ofthe foregoing Dedication and Deed ofPublic
Rights-of-Wayon behalfofthe City ofCarmel, Indiana.
Witness my hand and Notarial Sealthis day of , 20 .
NOTARY PUBLIC
My Commission No./Expiration:
Printed Name
My County ofResidence:
4
15th June 22
12/15/2029
Holly J. Harmeyer
Hamilton
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