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HomeMy WebLinkAboutB-2024-001 Donation for 106th Ped Bridge1 RESOLUTION 2024-B-2024-001 RESOLUTION OF THE CARMEL/CLAY BOARD OF PARKS AND RECREATION REGARDING DONATION TO CLAY TOWNSHIP (106th Street Pedestrian Bridge Project) WHEREAS, the Carmel/Clay Board of Parks and Recreation (the “Board”) met at a duly called and authorized meeting of the Board on the date set forth below, such meeting being called pursuant to a notice stating the time, place and purpose of the meeting received by all the Board members, and the following Resolutions were made, seconded and adopted by a majority of those present at the meeting, which constituted a majority of the Board: WHEREAS, on November 19, 2020, Clay Township of Hamilton County, Indiana (the “Township”) issued its General Obligation Bonds, Series 2020B in the principal amount of $4,305,000.00 and an issue price of $5,293,867.95 for the purpose of designing and constructing a pedestrian bridge spanning the White River in Hamilton County and the improvement and expansion of trails connected thereto and related structures and amenities as further described in Exhibit “A” attached hereto (the “Project”); and WHEREAS, the Board desires to contribute to the design, construction and equipping of the Project through a donation, as defined in Ind. Code §6-1.1-20-0.5(b) (the “Act”), of up to $3,000,000 (the “Donation”) to the Township for the purpose of contributing to the design and construction of the Project; and WHEREAS, the Township, the Board and other parties desire to enter into an Interlocal Cooperation Agreement providing for contributions to the design and construction of the Project and the perpetual use thereof by the general public; and WHEREAS, pursuant to Ind. Code §6-1.1-20-0.5(b) (the “Act”) for purposes of determining whether or not a project is a “Controlled Project” or is subject to referendum or petition remonstrance requirements, the cost of the Project does not include expenditures for the Project that will be paid from donations or other gifts (1) that are received by the political subdivision; and (2) for which the political subdivision adopts an ordinance or resolution pledging that the donations or other gifts will be used exclusively for expenditures on the Project’s cost; and WHEREAS, the Board has determined that it is in the best interest of the public to make the Donation to the Township for exclusive use on the Project, including the design, acquisition and installation thereof and related Project improvements, and to restrict the use of the Donation exclusively therefore, all in accordance with the Act. NOW, THEREFORE, BE IT RESOLVED BY THE CARMEL CLAY BOARD OF PARKS AND RECREATION THAT: SECTION 1. The foregoing Recitals are incorporated herein by this reference. SECTION 2. The President and Vice-President of the Board, and the Executive DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 2 Director of the Carmel/Clay Department of Parks and Recreation (“Department”), and each of them individually, are hereby authorized, empowered and directed to make the Donation and to execute any and all agreements necessary to complete the Donation to the Township, including the form of Donation Agreement attached hereto as Exhibit “B,” with such revisions as agreed to by the signatory thereof as evidenced by his or her signature thereon. SECTION 3. The Donation shall be used exclusively to pay expenditures related to the Project; provided that, in accordance with the Act, the Donation shall not be included in the “cost of the project” for the purposes of Ind. Code 6-1.1-20 et seq. as specified in the Act. SECTION 4. The Director is hereby authorized and empowered to transfer the Donation to an account or accounts selected by the Township; provided that, the Donation shall be utilized exclusively to pay costs of the Project, as provided herein, as determined in the Township’s sole discretion. SECTION 5. The President and Vice-President of the Board, and the Executive Director of the Department, and each of them individually, are hereby authorized, empowered and directed to negotiate the final form of an Interlocal Cooperation Agreement, the general form of which is attached hereto as Exhibit “C” and to execute the same with such revisions as agreed to by the signatory thereof as evidenced by his or her signature thereon. SECTION 6. This Resolution is effective immediately upon its passage. [Signature page follows] DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 3 Adopted by the Carmel/Clay Board of Parks and Recreation and effective this 13th day of February, 2024. CARMEL/CLAY BOARD OF PARKS AND RECREATION Judith F. Hagan, President __X___ Aye _____ Nay Jenn Kristunas, Vice-President _Absent_ Aye _____ Nay Lin Zheng, Treasurer __X___ Aye _____ Nay Linus Rude, Secretary __X___ Aye _____ Nay Jonathan Blake __X___ Aye _____ Nay Katie Browning __X___ Aye _____ Nay James D. Garretson __X___ Aye _____ Nay Joshua A. Kirsh __X___ Aye _____ Nay Mark Westermeier __X___ Aye _____ Nay CERTIFICATION I certify under the penalties of perjury that the foregoing members of the Carmel/Clay Board of Parks and Recreation voted as indicated above at a public meeting on February 13, 2024. _______________________________ Judith F. Hagan, President DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 4 EXHIBIT “A” Description of the Project A pedestrian bridge spanning the White River near 106th Street in Fishers connecting Delaware Township and Fishers with Clay Township and Carmel, all in Hamilton County, and the improvement and expansion of trails connected thereto, including site preparation, infrastructure, utilities, and improvements related thereto, and any ancillary expenses including the costs of financing and reasonable contingency. It is anticipated that the Project will be constructed in accordance with the Carmel Clay Parks & Recreation Comprehensive Master Plan and the Multi- jurisdictional White River Vision Plan. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 EXHIBIT “B” Form of Donation Agreement Carmel Clay Board of Parks and Recreation Donation Agreement (106th Street Pedestrian Bridge Project) This Donation Agreement (“Donation Agreement”), effective as of __________, 2024 (“Effective Date”), is made and entered into by and between the Carmel/Clay Board of Parks and Recreation, an Indiana political subdivision, whose address is 1411 E. 116th Street, Carmel, IN 46032 (the “Park Board”) and Clay Township of Hamilton County, Indiana, an Indiana political subdvision (“Clay Township”), 10701 N. College Avenue, Suite B, Indianapolis, Indiana 46280. RECITALS WHEREAS, on November 19, 2020, Clay Township issued its General Obligation Bonds, Series 2020B in the principal amount of $4,305,000.00 with an issue price of $5,293,867.95 for the purpose of designing and constructing a pedestrian bridge spanning the White River in Hamilton County and the improvement and expansion of trails connected thereto and related structures and amenities as further described in Exhibit “A” attached hereto (the “Project”); and WHEREAS, the Park Board has expressed its desire to contribute to the design, construction and equipping of the Project through a donation, as defined in Ind. Code §6-1.1-20- 0.5(b) (the “Act”), in the amount of $3,000,000 (the “Donation”) to Clay Township for the purpose of contributing to the design and construction of the Project; and WHEREAS, the Park Board has adopted Resolution No. 2024-_______ authorizing and directing the proper officers of the Park Board to execute this Donation Agreement and complete the Donation in accordance with this Agreement; and WHEREAS, Clay Township has adopted Resolution No. 2024-01-09-01 authorizing and directing the Trustee of Clay Township to receive the Donation and to execute this Donation Agreement and complete the Donation in accordance with this Agreement; and WHEREAS, the Park Board has taken all action necessary to authorize the completion of the Donation in accordance with the terms contained in this Donation Agreement. AGREEMENT 1. Donation. The Park Board hereby pledges to Clay Township the payment of the Donation for the exclusive use of funding the design, construction and equipping of the Project and related Project improvements, and for no other purpose. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 2. Payment of the Donation. The Donation is an irrevocable pledge that will be effective upon execution of this Donation Agreement and will be paid to Clay Township within sixty (60) days of the commencement of construction of the Project or as otherwise agreed by the parties. Clay Township’s Project Manager, CTI Construction, LLC, shall notify the Park Board when construction of the Project has commenced. Payments shall be made by the Park Board directly to Clay Township and Clay Township shall deposit the same in a non- reverting fund to be used exclusively for payment of costs of the Project. In the alternative, payments may be made by the Park Board to The Huntington National Bank as Paying Agent and holder of the Project Fund for construction of the Project and shall be deemed received by Clay Township upon receipt by the Paying Agent. 3. Donative Intent. Clay Township and the Park Board agree and acknowledge that the Donation is being made with no requirements or restrictions being placed upon it by the Park Board with the exception of the restrictive use provided for herein and in the Act, and the perpetual availability of the use of the Project by the public. Clay Township and the Park Board stipulate that the Donation is a bona fide donation and with the Park Board’s intent to make a bona fide donation to the Project consistent with the terms of the Act. No consideration or other agreements outside of this Donation Agreement is being entered into between the Park Board and Clay Township to provide any special rights or acknowledgements to the Park Board. 4. Assignment. This Donation Agreement and the rights and benefits hereunder may not be assigned by either party without the prior written consent of the other party, which consent shall be in the sole and absolute discretion of the non-assigning party. 5. Entire Agreement. This Donation Agreement constitutes the entire agreement of the parties with regard to the matters referred to herein, and supersedes all prior oral and written agreement, if any, of the parties in respect hereto. This Donation Agreement may not be modified or amended except by written agreement executed by both parties hereto. The captions inserted in this Donation Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Donation Agreement, or any provision hereof, or will in any way affect the interpretation of this Donation Agreement. Nothing contained herein shall prevent the parties from entering into an Interlocal Cooperation Agreement pursuant to the provisions of Ind. Code §§36-1-7 et seq. to further define the obligations of the parties with respect to the Project. The parties both acknowledge the intent to enter into a Management Agreement for the maintenance and upkeep of the Project by the Park Board upon completion. 6. Governing Law and Venue. This Donation Agreement will be governed by and construed in accordance with the laws of the State of Indiana without regard to any conflict of laws rule or principle that might refer the governance or construction of this Donation Agreement to the laws of another jurisdiction. Subject to the sovereign immunity of the State of Indiana, any legal proceeding brought in connection with disputes relating to or DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 arising out of this Donation Agreement will be filed and heard in Hamilton County, Indiana, and each party waives any objection that it might raise to such venue and any right it may have to claim that such venue is inconvenient 7. Clay Township Approval. This Donation Agreement and the actions provided for herein have been approved by the legislative body of Clay Township. This Donation Agreement will be effective for Clay Township upon the execution on behalf of Clay Township by the Clay Township Trustee. 8. Park Board Approval. This Donation Agreement and the actions provided for herein have been approved by the Park Board. This Donation Agreement will be effective for the Park Board upon the execution of this Agreement on behalf of the Park Board by the proper officers of the Park Board. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature Page for Donation Agreement 106th Street Pedestrian Bridge Project] 9. Cooperation. Clay Township and the Park Board will cooperate and execute any documentation reasonably necessary or appropriate in relation to the Donation. Clay Township shall cooperate with any audits or inquiries that may arise from the Donation, including allowing the Indiana State Board of Accounts to access all information relating to construction of the Project upon request. CLAY TOWNSHIP OF HAMILTON CARMEL CLAY BOARD OF PARKS COUNTY, INDIANA AND RECREATION By: ______________________________ By: ______________________________ Paul Hensel, Trustee Michael Klitzing, Director DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 EXHIBIT “A” Description of Project A pedestrian bridge spanning the White River near 106th Street in Fishers connecting Delaware Township and Fishers with Clay Township and Carmel, all in Hamilton County, and the improvement and expansion of trails connected thereto, including site preparation, infrastructure, utilities, and improvements related thereto, and any ancillary expenses including the costs of financing and reasonable contingency. It is anticipated that the Project will be constructed in accordance with the Carmel Clay Parks & Recreation Comprehensive Master Plan and the Multi- jurisdictional White River Vision Plan. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 EXHIBIT “C” Form of Interlocal Cooperation Agreement INTERLOCAL COOPERATION AGREEMENT FOR JOINT FINANCING OF PEDESTRIAN BRIDGE CONSTRUCTION by and between CLAY TOWNSHIP OF HAMILTON COUNTY INDIANA DELAWARE TOWNSHIP OF HAMILTON COUNTY INDIANA HAMILTON COUNTY, INDIANA CITY OF FISHERS, INDIANA and THE CARMEL/CLAY BOARD OF PARKS AND RECREATION Effective as of __________________, 2024 ______________________________________________________________________________ DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 1 INTERLOCAL COOPERATION AGREEMENT FOR JOINT FINANCING OF PEDESTRIAN BRIDGE CONSTRUCTION This Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction (“Agreement”) is effective as of the Effective Date specified below by and between Clay Township of Hamilton County, Indiana (“Clay Township”) acting by and through its Township Trustee, Hamilton County, Indiana (the “County”) acting by and through its Board of County Commissioners, the City of Fishers, Indiana (the “City”) acting by and through its Mayor, Delaware Township of Hamilton County, Indiana (“Delaware Township”) acting by and through its Township Trustee and the Carmel/Clay Board of Parks and Recreation (the “Park Board”) acting by and through the Director of the Carmel/Clay Department of Parks and Recreation (each of the foregoing entities are individually referred to as a “Party” and collectively the “Parties”). DECLARATION OF PURPOSE WHEREAS, the Parties desire to establish a comprehensive commitment for the financing of the design and construction of a pedestrian bridge over the White River to be located at approximately 106th Street as further illustrated in Exhibit A attached hereto, along with related recreational trails and improvements in order to provide recreational opportunities for the public (collectively the “Pedestrian Bridge”); and WHEREAS, Ind. Code 36-1-7 et seq. (the “Interlocal Cooperation Act”) authorizes the Parties, as political subdivisions, to exercise powers jointly pursuant to a written agreement authorized by ordinance or resolution of each of them and to administer such agreement through a joint board established therefore; and WHEREAS, the Parties intend to enter into certain Donation Agreements providing for the donation of specified funds pursuant to the provisions of Ind. Code §6-1.1-20-0.5(b) (the “Donations”) to Clay Township for the construction of the Pedestrian Bridge in order to exclude the Donations from the “costs of the project” for the Pedestrian Bridge. WHEREAS, the Parties have adopted substantially identical resolutions or ordinances authorizing the execution of this Agreement and the Donation Agreements for determining the application of the controlled project and petition remonstrance requirements of Ind. Code 6-1.1-20 et seq. NOW THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein, the Parties agree as follows: ARTICLE I. AUTHORITY FOR AGREEMENT The Parties enter into this Agreement in accordance with the provisions of the Interlocal Cooperation Act which provides that a power that may be exercised by an Indiana political subdivision and one or more other governmental entities may be exercised jointly by entering into a DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 2 written interlocal cooperation agreement. The Parties desire to enter into such an agreement for the joint financing of the design and construction of the Pedestrian Bridge on the terms set forth herein. ARTICLE II. PURPOSE The purpose of this Agreement is to provide for the joint financing of the design, construction and equipping of the Pedestrian Bridge and the provision of parks and recreational opportunities related thereto, including the provision of necessary utilities, access ways and other infrastructure and services necessary for the development of the Pedestrian Bridge and related improvements. The Parties delegate to Clay Township all powers and authorities that are useful, necessary or appropriate for the development, procurement, establishment, design, financing, construction, operation and maintenance of the Pedestrian Bridge in accordance with the provisions of this Agreement. ARTICLE III. DEFINITIONS As used in this Agreement, the following terms shall have the meanings specified below: a) “Agreement” means this Interlocal Cooperation Agreement for Joint Financing. b) “Bank” means The Huntington National Bank, a national banking association having a designated corporate trust office in Indianapolis, Indiana. c) “Board” shall mean the Board appointed pursuant to Section 4.1 of this Agreement. d) “City” means the City of Fishers, Indiana acting by and through its Mayor. e) “Clay Township” means Clay Township of Hamilton County, Indiana acting by and through its Trustee. f) “County” means Hamilton County, Indiana acting by and through its Board of County Commissioners. g) “County Commissioners” shall mean the Hamilton County Board of County Commissioners acting by or through its designee. h) “Delaware Township” means Delaware Township of Hamilton County, Indiana acting by and through its Trustee. i) “Director” means the Director of the Carmel/Clay Department of Parks and Recreation. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 3 j) “Donation Agreement” or “Donation Agreements” shall mean the Donation Agreements entered into by and between Clay Township as Donee and the City, the County, the Park Board and Delaware Township as Donors. k) “Interlocal Cooperation Act” means Ind. Code 36-1-7 et seq. as amended from time to time. l) “Park Board” means the Carmel/Clay Board of Parks and Recreation acting by and through the Director. m) “Party” or “Parties” means each party to this Agreement, or the parties collectively. n) “Trustee” means the Township Trustee of the referenced Township. ARTICLE IV. ADMINISTRATION Section 4.1. Establishment of Joint Board. As required by Section 3(a)(5) of the Interlocal Cooperation Act the Parties hereby designate a board to act as the joint board required by the Interlocal Cooperation Act for the purposes of this Agreement (the “Board”). The Board shall consist of the Clay Township Trustee, the Mayor of the City, one member of the County Commissioners, the Delaware Township Trustee, and the Director, or a representative appointed by any of the foregoing. Members of the Board shall serve at the will of their appointing authority or until their term as an elected or appointed official expires. The Clay Township Trustee shall act as the Chairman of the Board, the Delaware Township Trustee shall serve as the Vice Chair of the Board and the Director shall serve as the Secretary of the Board unless a resolution is adopted by the Board providing for different officers. Section 4.2. Alternate Rules of Governance. The Board shall be governed by its own rules or bylaws which it may (but is not required to) establish by adoption and which may be amended from time to time as provided therein. The Board may adopt and amend its bylaws in a manner that is not inconsistent with this Agreement or the Interlocal Cooperation Act and as it may determine to be in the best interest of the Board and the public interest. The Board is not required to formally adopt rules or bylaws and may operate by mutual agreement of the members of the Board. Section 4.3. Public Records. An official record of all meetings of the Board shall be maintained in the office of the Clay Township Trustee. Accurate memoranda of all meetings shall be kept in accordance with Ind. Code §5-14-1.5-4(b) and (c) and shall be available for public inspection during normal business hours. The Board shall be governed by, and all records of the Board shall be maintained in accordance with, Ind. Code 5-14-3 et seq. and other provisions of law applicable to government bodies. Section 4.4. Meetings of the Board. Meetings of the Board may be called by the Chairman of the Board or by any two (2) members of the Board. ARTICLE V. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 4 FINANCING AND OPERATION OF THE PROJECT Section 5.1. Financing. The design and construction of the Pedestrian Bridge shall be financed jointly by funds allocated or appropriated for such purpose by each of the Parties. The respective contribution plan of the Parties shall be as follows: Clay Township: $5,084,180.28 to be contributed as provided in Exhibit B Carmel Clay Parks: $3,000,000.00 to be contributed as provided in Exhibit B Hamilton County: $1,600,000.00 to be contributed as provided in Exhibit B Delaware Township: $1,328,888.00 to be contributed as provided in Exhibit B City of Fishers: $ 400,000.00 to be contributed as provided in Exhibit B All contributed funds shall be deemed received by Clay Township and shall be deposited into the Project Fund established pursuant to Clay Township Resolution No. 2020-09-22-02 authorizing the Clay Township, Hamilton County, Indiana General Obligation Bonds, Series 2020B (Pedestrian Bridge) and deposited with The Huntington National Bank (the “Bank”) pursuant to the Registrar and Paying Agent Agreement dated November 1, 2020 by and between Clay Township and the Bank. In the alternative, contributed funds shall be placed in a non-reverting fund established by Clay Township entitled the “Pedestrian Bridge Non-Reverting Fund” and maintained by the Clay Township Trustee who shall be responsible to receive, disburse and account for monies in the Fund, in accordance with Section 4(a)(3) of the Interlocal Cooperation Act and other applicable provisions of Indiana law. Disbursements from the Fund shall be by claims authorized or approved by the Clay Township Trustee for the distribution of Project Funds by the Bank. A monthly report of expenditures from the Project Fund shall be distributed by the Clay Township Trustee or his designee to each member of the Board for review and information. Section 5.2. Construction Budget. The initial construction budget shall be approved by the Clay Township Trustee and distributed to the Board. Provided that adequate funds are available in the Project Fund, change orders issued after the approval of the construction budget shall be approved by the Clay Township Trustee with a report thereof submitted to each member of the Board for review and information. Any questions regarding the construction budget or change orders thereto shall be submitted to the Clay Township Trustee in writing and the Trustee will promptly respond or direct the response thereto from the proper party. Section 5.3. Ownership, Use and Management. The Pedestrian Bridge shall be owned by Clay Township, provided that access to the Pedestrian Bridge shall be open to all constituents of the Parties and the public. Clay Township shall enter into a Management Agreement with the Park Board providing for the ongoing maintenance, management and operation of the Pedestrian Bridge by the Carmel Clay Parks Department. Unless otherwise agreed in writing, Delaware Township, the County and the City shall have no ongoing maintenance or use costs for the operation and management of the Pedestrian Bridge on an ongoing basis, and all such costs shall be provided by the Township and/or the Park Board. Section 5.4. Compliance with Laws. Clay Township shall be solely responsible for the compliance with all local, state and federal laws, regulations, ordinances and codes related to the DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 5 construction of the Pedestrian Bridge and shall indemnify the other Parties from any claims or damages related to noncompliance of any nature whatsoever. ARTICLE VI. REAL AND PERSONAL PROPERTY The Board shall not acquire, hold or dispose of real or personal property used in this joint undertaking in its own name and all such real and personal property shall be held in the name of Clay Township of Hamilton County, Indiana for use by the Parties and the public as provided in this Agreement. ARTICLE VII. DURATION, AMENDMENT, WITHDRAWAL AND TERMINATION Section 7.1. Duration. This Agreement shall continue as the binding agreement of the Parties hereto until the financing commitments of each Party contained herein is fulfilled and the Pedestrian Bridge has reached substantial completion. Upon final completion and acceptance of the Pedestrian Bridge by Clay Township, this Agreement shall automatically terminate without further action of the Parties upon the date that is two (2) years after the substantial completion of the Project. Section 7.2. Transfer of Pedestrian Bridge. It is anticipated that the Pedestrian Bridge will be owned in perpetuity by Clay Township for use by the general public. Clay Township shall not transfer title or ownership of the Pedestrian Bridge to any party other than a governmental entity with the stipulation that such transfer shall require maintaining the Pedestrian Bridge as an asset available to the general public for parks and recreation purposes. Any disposition of the Pedestrian Bridge must be in accordance with the laws applicable to governmental entities of the State of Indiana and laws applicable to Clay Township. As no assets will be held in the name of the Board, no provision for the disposal of jointly acquired property is required by the Act. Section 7.3. Amendment. The Parties may, from time to time, alter, change or amend the terms and conditions of this Agreement by an amendment in writing making specific reference to the document as an amendment to this Agreement, approved and executed by each of the Parties in the same manner as this Agreement was originally approved, unless otherwise specifically provided for herein. Any amendment or modification of this Agreement shall take effect immediately upon the approval of the last of the Parties to approve such amendment or modification and upon recording of the amendment as required by Ind. Code §36-1-7-6, or at such other time as is specifically designated in the amendment or modification. ARTICLE VIII. POWERS, PRIVILEGES AND IMMUNITIES OF THE BOARD The Board shall have all the powers, privileges and immunities granted under this Agreement, the Interlocal Cooperation Act and other applicable law. ARTICLE IX. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 6 REMEDIES, WAIVER AND IMMUNITY Section 9.1. Remedies. In the event of any breach, threatened breach, non-performance or other violation of any obligation of this Agreement by any Party, the sole and exclusive remedy by any other Party under this Agreement shall be the remedy of injunctive relief or specific performance. Under no circumstances shall any Party have a right to any other remedy, including but not limited to rescission, cancellation or reformation of this Agreement for any reason, or monetary damages of any kind. Section 9.2. Waiver. A failure by a Party to this Agreement to institute any suit, action or other proceeding for any breach or violation by another Party of any obligation under this Agreement shall not constitute a waiver by such Party of such breach or violation. Section 9.3. Immunity of Officers, Directors, Members, Employees and Agents. No recourse shall be had for any claim based upon any obligation in this Agreement against any past, present or future official, officer, director, member, employee or agent of the Board or the Parties under any rule of law or equity, statute or constitution. ARTICLE X. GENERAL MATTERS Section 10.1. Governing Law. In the event of any disagreements or conflicts under this Agreement, the parties shall submit the same to the courts with jurisdiction in Hamilton County, Indiana and wave any claim to change of venue or lack of jurisdiction. Section 10.2. Counterparts. This Agreement may be executed in multiple counterparts, each of which when so executed shall be deemed to be an original, and such counterparts, together, shall constitute but one and the same instrument, which shall be sufficiently evidenced by any such original counterpart. Section 10.3. Severability. The sections, sentences and provisions of this Agreement are severable, and if any one or more of such sections, sentences or provisions (the “Conflicting Provisions”) are in conflict with any applicable laws, the Conflicting Provisions shall be deemed never to have constituted a part of this Agreement and this Agreement shall be deemed amended pursuant to Section 7.3 to remove the Conflicting Provisions; provided, however, that such conflict or amendment shall not affect or impair any of the remaining provisions of this Agreement or render invalid or improper any action taken or omitted prior to the delivery or removal of the Conflicting Provisions. Section 10.4. Agreement; Transfer of Powers. This Agreement is intended to be an interlocal agreement entered into pursuant to the Interlocal Cooperation Act, in which the Parties have undertaken to provide that which is required by the Interlocal Cooperation Act and is intended to vest in the Board those powers specified in Article VIII and elsewhere herein that may be transferred to, and vested in, the Board pursuant to Indiana law. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 7 Section 10.5. Reasonable Efforts; Cooperation. Subject to the terms and conditions of this Agreement, each Party will use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. In addition, the Parties each agree to cooperate and take such actions, including any necessary amendments hereto, as may be required in the judgment of the Board for the Board to obtain all necessary qualifications and approvals, including any that may be required by any state and federal governmental agencies, and to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement, and from time to time, upon the request of another Party to this Agreement and without further consideration, to execute, acknowledge and deliver in proper form any further instruments, and take such other action as the other Parties may reasonably require, in order to effectively carry out the intent of this Agreement, including without limitation, the delegation of any further powers that may be necessary, useful or appropriate to permit the Board to carry out its purposes. Section 10.6. No Assignment. No Party may sell, assign, pledge or otherwise transfer any of its rights or benefits under this Agreement to any other person, without the consent of all other Parties, and any purported sale, assignment, pledge or other transfer without such consent shall be null and void. Section 10.7. Limitation of Rights. Nothing expressed or implied in this Agreement is intended to give, or shall give, to any other person, other than the Parties and the Board, any legal or equitable right, remedy or claim under or with respect to this Agreement or any rights or obligations hereunder. This Agreement and the rights and obligations hereunder are intended to be, and shall be, for the sole and exclusive benefit of the Parties and the Board. Section 10.8. Notice. Unless oral notice is otherwise allowed in this Agreement, all notices required to be sent under this Agreement: (a) shall be in writing; (b) shall be deemed to be sufficient if given by (i) depositing the same in United States mail, postage prepaid, or (ii) electronically transmitting such notice by any means such as by facsimile transmission or electronic mail or (iii) by depositing the same with a courier delivery service for delivery on the following business day, addressed as follows: If to Clay Township: Clay Township of Hamilton County, Indiana Attn: Trustee 10701 N. College Avenue, Suite B Indianapolis, IN 46280 If to Delaware Township: Delaware Township of Hamilton County, Indiana Attn: Trustee 9090 E. 131st Street Fishers, IN 46038 If to the Park Board: Carmel/Clay Board of Parks and If to the City of Fishers: Office of the Mayor DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 8 Recreation Attn: Executive Director 1411 East 116th Street Carmel, IN 46032 Attn: City Attorney City of Fishers, Indiana 3 Municipal Drive Fishers, IN 46038 If to Hamilton County: County Commissioners Office Attn: County Attorney 1 Hamilton County Square, Suite 157 Noblesville, IN 46060 Notices shall be deemed to have been given on the date of such mailing, transmission or deposit. Any of the methods specified herein shall be sufficient for delivery of any notice required hereunder, notwithstanding that one or more of such methods may not be specifically listed in the Sections hereunder requiring such notice. Section 10.9. Performance Due on Day other than a Business Day. If the last day for taking any action under this Agreement is a day other than a business day, such action may be taken on the next succeeding business day and, if so taken, shall have the same effect as if taken on the day required by this Agreement. Section 10.10 No Discrimination. Pursuant to Ind. Code §22-9-1-10, the Parties each represent that the Party and its subcontractors shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to the employee’s or applicant’s hiring, tenure, terms, conditions or privileges of employment or any matter directly or indirectly relating to employment, because of the employee’s or applicant’s race, religion, color, sex, disability, national origin, ancestry or veteran status. Breach of this covenant may be regarded as a material breach of this Agreement. Section 10.11. Entire Agreement. This Agreement shall constitute the entire agreement of the Parties with respect to the subject matter hereof and shall supersede all prior oral or written agreements in regard thereto. Section 10.12. Effective Date. This Agreement shall take effect upon its execution after the approval of the executive and fiscal body of each Party, and shall become effective upon being recorded with the County Recorder of Hamilton County as required by Section 6 of the Act. Not later than sixty (60) days after it take effect, this Agreement shall be filed with the State Board of Accounts for audit purposes as required by Indiana law. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature page of Clay Township to Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction] Approved by the Clay Township Trustee: CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA By: ___________________________________ Paul Hensel, Trustee Approved by the Clay Township Board: By: ________________________________ Paul Bolin, President DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature page of Hamilton County, Indiana to Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction] Approved by the Board of Commissioners of Hamilton County, Indiana: HAMILTON COUNTY BOARD OF COMMISSIONERS By: ___________________________________ By: ___________________________________ By: ___________________________________ Approved by the Hamilton County Council: By: ____________________________ Ken Alexander, Council President DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature page of the City of Fishers, Indiana to Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction] Approved by the City of Fishers, Indiana: CITY OF FISHERS, INDIANA By: ___________________________________ Scott Fadness, Mayor Approved by the Fishers City Council: By: ____________________________ John Weingardt, President DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature page of Delaware Township to Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction] Approved by the Delaware Township Trustee: DELAWARE TOWNSHIP OF HAMILTON COUNTY, INDIANA By: ___________________________________ Debbie Driskell, Trustee Approved by the Delaware Township Board: By: ________________________________ Rick Fain, President DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 [Signature page of the Carmel/Clay Board of Parks and Recreation to Interlocal Cooperation Agreement for Joint Financing of Pedestrian Bridge Construction] Approved by majority vote of the Carmel/Clay Board of Parks and Recreation: CARMEL/CLAY BOARD OF PARKS AND RECREATION By: ____________________________________ Michael Klitzing, Director This document prepared by: Brian C. Bosma, Esq., Kroger Gardis & Regas, LLP, 111 Monument Circle, Suite 900, Indianapolis, Indiana 46204-5125. (317) 692-9000. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Brian C. Bosma, Esq. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 EXHIBIT “A” Description of Pedestrian Bridge A pedestrian bridge spanning the White River near 106th Street in Fishers connecting Delaware Township and Fishers with Clay Township and Carmel, all in Hamilton County, and the improvement and expansion of trails connected thereto, including site preparation, infrastructure, utilities, and improvements related thereto, and any ancillary expenses including the costs of financing and reasonable contingency. It is anticipated that the Project will be constructed in accordance with the Carmel Clay Parks and Recreation Comprehensive Master Plan and the Multi- jurisdictional White River Vision Plan. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8 EXHIBIT “B” Pedestrian Bridge Financing Plan Clay Township: Clay Township has issued its Township General Obligation Bonds, Series 2020B issued in the principal amount of $4,305,000.00 and generating a Project Fund of $5,084,180.28. Hamilton County, Indiana: Hamilton County shall appropriate and pay to the fund designated in Section 5.1 of the Agreement the amount of $1,600,000.00 in a single payment anticipated to be made on or before March 31, 2024. City of Fishers, Indiana: The City of Fishers shall appropriate and pay to the fund designated in Section 5.1 of the Agreement the amount of $400,000.00 in a single payment anticipated to be made on or before March 31, 2024. Delaware Township: Delaware Township has issued its Township General Obligation Bonds, Series 2023 issued in the principal amount of $8,000,000.00 and generating a funds for the Project in the amount of $1,328,888.00 to be paid to the fund designated in Section 5.1 of the Agreement in a single payment anticipated to be made on or before March 31, 2024. Carmel/Clay Board of Parks & Recreation: The Parks Board shall appropriate and pay to the fund designated in Section 5.1 of the Agreement the amount of $3,000,000.00 in a single payment anticipated to be made on or before March 31, 2024. DocuSign Envelope ID: 2613AE30-101C-4E3D-A3EA-388FBE0B70B8